TortsProf Blog

Hubbard's Scholarship

F. Patrick Hubbard (South Carolina) has posted to SSRN several of his older works.

Making People Whole Again:  The Constitutionality of Taxing Compensatory Damages for Mental Distress

The Physicians' Point of View Concerning Medical Malpractice:  A Sociological Perspective on the Symbolic Importance of 'Tort Reform'

The Nature and Impact of the 'Tort Reform' Movement

--CJR

Jennifer Wriggins's Constitution Day Lecture

Jennifer Wriggins (Maine) has posted her Constitution Day lecture at Maine to SSRN.  Entitled Constitutional Law and Tort Law:  Injury, Race, Gender, and Equal Protection, the abstract provides:

The lecture focuses on how the equal protection clause of the fourteenth amendment relates to tort law. It was the Annual Constitution Day Lecture given at the University of Maine School of Law on September 17, 2010. The equal protection clause requires that "all persons similarly circumstanced shall be treated alike." Royster Guano v. Virginia, 253 U.S. 412, 415 (1920). This formal equality requirement applies to tort law as to other areas of law. Yet it is difficult in torts to discern whether the requirement has been violated, because of the decentralized and individualized method of adjudication used to resolve tort claims. Tort law since the end of slavery has not had clear statutory exclusions based on race, unlike areas such as education or transportation. Individual court decisions, however, can constitute state action that violates the equal protection clause, as seen in cases such as Palmore v. Sidoti, 466 U.S. 429 (1984), in the family law arena.

Clear examples from the history of tort law show that some tort decisions devalued African-Americans’ tort claims and thus violated the equal protection clause, as discussed in Part II. Equal protection continues to be relevant to tort law. Race-based and gender-based tables are still used in court to predict a plaintiff’s earnings or life expectancy for determining tort damages. Such admission is arguably state action and can not be justified by any compelling state interest, Part III explains. The admission of these tables in court is a violation of plaintiffs’ equal protection rights.

--CJR

Dorf on "The Setoff Problem"

An article in Saturday's NY Times reported that New York State seeks reimbursement from indigent patients in state-run mental hospitals when the patient wins a tort award against the state for poor care in the very same hospital. 

On his blog, Dorf on Law, Michael Dorf (Cornell) comments on the impact of this practice on the deterrence goal of a tort award    As Dorf explains,

Vis-a-vis an indigent who owes the State hundreds of thousands or millions of dollars for past care, the State itself is a kind of indigent--in the sense that it will never see that money, and so can commit torts up to the value of that care without worrying about any real out-of-pocket cost.  

- SBS

Two Law Profs Win $5 Million Punitive Damages From West

As Brian Leiter reports, two law professors (from Penn and Widener) have won $5 million in punitive damages in a defamation suit against West Publishing.  Although their contract allowed West to continue to publish their treatise using their names, the two professors sued West, claiming that the latest edition damaged their professional reputations because it was an inferior product (with only 3 new cases added to the entire book).   A federal jury agreed with the professors and awarded $90k to each professor for compensatory damages, and $2.5 million each in punitive damages.

Leiter also has links to the Philadelphia Inquirer story as well as the Legal Intelligencer story.

Thanks to Lisa Smith-Butler for the alert.

- SBS

NY: Golfer Not Liable for Failure to Yell "Fore"

The New York Court of Appeals affirmed the Appellate Division's dismissal of a golfer's tort action based on his golfing partner's failure to warn of an impending swing of the club:

"The manner in which Anand was injured — being hit without warning by a ’shanked’ shot while one searches for one’s own ball — reflects a commonly appreciated risk of golf,” the judges wrote.

The (short) opinion is here.  WSJ Blog coverage is here.

--CJR

 

 

 

 

 

Tyler Clementi's Family Files Notice of Claim Against Rutgers

The family of Tyler Clementi, the student who committed suicide in September after video of his inimate encounter with another man was broadcast on the internet, has filed a notice of claim against Rutgers University:

The notice, filed by Westmont attorney Stephen DeFeo, contends the university failed to protect Clementi against “unlawful or otherwise improper acts perpetrated against” the Rutgers freshman.

“It appears Rutgers University failed to act, failed to put in place and/or failed to implement, and enforce policies and practices that would have prevented or deterred such acts, and that Rutgers failed to act timely and appropriately,” the notice reads.

myCentralJersy.com has the story.

--CJR

AALS Torts & Compensation Section Meeting on Vaccines and Drugs

Saturday January 8, 2011

 1:30-3:15 PM

Section on Torts and Compensation Systems

Market Street, Third Floor Level, Parc 55 Wyndham San Francisco Union Square

 

Vaccines and Drugs: A Brave New Tort World

(Papers to be published in the Indiana Health Law Review)

Moderator: Catherine M. Sharkey, New York University School of Law

Speakers: James R. Copland, Director, Manhattan Institute Center for Legal Policy, New York, NY

Mary J. Davis, University of Kentucky College of Law

Robert L. Rabin, Stanford Law School

Malcolm E. Wheeler, Partner, Wheeler Trigg O'Donnell LLP, Denver, CO

The proliferation of vaccine and pharmaceutical drug-related injuries challenges our conceptions of how the tort system can best meet its compensatory and regulatory aims in the 21st century. In 1986, Congress created the National Childhood Vaccine Act, establishing a no-fault compensation scheme for vaccine-related injuries. In 2010, the U.S. Supreme Court granted certiorari in Bruesewitz v. Wyeth, Inc. to decide whether design defect claims against vaccine manufacturers are preempted. This follows closely on the heels of the U.S. Supreme Court's decision in Wyeth v. Levine, finding that failure to warn claims against a drug manufacturer were not preempted. Our panelists—who include two prominent torts and products liability scholars (Professors Davis and Rabin), a seasoned litigator (Mr. Wheeler), and a policy expert (Mr. Copland)—will explore whether it makes sense to have separate legal regimes for vaccines and other pharmaceuticals. They will also address issues at the core of tort law in the modern administrative state: the need for no-fault victim compensation and the respective roles of litigation and governmental regulation.

Business Meeting at Program Conclusion.

Note that we finally have a location!

--CJR

Philadelphia Tops ATRA's 2010 Judicial Hellholes Report

Last week, the American Tort Reform Association (ATRA) announced its 2010 Judicial Hellholes Report (pdf).  From the news release:

"Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits," explained ATRA general counsel Victor Schwartz. "The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research."

Philadelphia, PA topped the list this year, followed by LA and Humboldt County, California. 

ATRA also has moved its Judicial Hellholes feature "to an an online format that will feature year-round reporting on significant civil justice developments."

- SBS

Personal Injury Roundup No. 89 (12/17/10)

New Suits

• Lawyer sues ex-fiancee for IIED.  (ABA Journal)
• Class action suit filed against McDonald's for putting toys in happy meals. (WaPo, WSJ Law Blog, Olson/Overlawyered)
• DOJ sues BP over Deepwater Horizon Spill.  (Jurist, WSJ Law Blog)
• Sierra Club and Environment Texas sue Exxon Mobil for air pollution. (Google News/AFP)

Appeals

• Supreme Court grants cert in three generic preemption cases.  (FDA Law Blog)
• Fifth Circuit on bellweather trial selection.  (Drug & Device)

Reform, Legislation, Policy

• FDA begins tracking amount of antibiotics in meat. (The Atlantic)
• President Obama signs the Healthy, Hunger-Free Act of 2010.  (WaPo)

Trials, Settlements and Other Ends

• Judge dismisses exploding snail case. (Olson/Overlawyered)

--SBS

Olson on the Happy Meal Lawsuit

Walter Olson takes on the Happy Meal lawsuit in a guest column at New York Daily News.  ("McDonald's suit over Happy Meal toys by California mom Monet Parham new low in responsible parenting")

--CJR

The Prospects for Federal Tort Reform

Yesterday's Washington Times contained an article about the effects of the November election regarding federal tort reform.  ("Changes on the Hill bode ill for trial lawyers")

--CJR

Top 10 Recent SSRN Torts & Products Liability Downloads

Rank	Downloads	Paper Title
1	292	Harry Potter and the Trouble with Tort Theory Scott Hershovitz, University of Michigan Law School, Date posted to database: October 7, 2010 Last Revised: November 14, 2010
2	203	Just a Joke: Defamatory Humor and Incongruity's Promise Laura E. Little, Temple University - James E. Beasley School of Law, Date posted to database: November 2, 2010 Last Revised: November 26, 2010
3	196	Apportioning Liability Behind a Veil of Ignorance Shahar Dillbary, University of Alabama School of Law, Date posted to database: November 6, 2010 Last Revised: November 6, 2010
4	104	The Deepwater Horizon Oil Spill and the Limits of Civil Liability Ronen Perry, University of Haifa - Faculty of Law, Date posted to database: October 1, 2010 Last Revised: October 1, 2010
5	91	Toward a General Theory of Tort Law: Strict Liability in Context Richard A. Epstein, New York University School of Law, Date posted to database: October 6, 2010 Last Revised: November 7, 2010
6	83	The Predictability of Juries Valerie P. Hans, Theodore Eisenberg, Cornell University - School of Law, Cornell University - School of Law, Date posted to database: October 2, 2010 Last Revised: October 2, 2010
7	80	Tort as a Litigation Lottery: A Misconceived Metaphor Timothy D. Lytton, Robert L. Rabin, Peter H. Schuck, Albany Law School, Stanford Law School, Yale University - Law School, Date posted to database: October 12, 2010 Last Revised: November 7, 2010
8	77	Responsibility in Negligence: Why the Duty of Care is Not a Duty 'To Try' Ori J. Herstein, Cornell University - School of Law, Date posted to database: September 6, 2010 Last Revised: September 12, 2010
9	76	Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law David S. Ardia, Berkman Center for Internet & Society, Date posted to database: October 10, 2010 Last Revised: October 10, 2010
10	71	The Pervasive Role of Uncertainty in Tort Law: Rights and Remedies Robert L. Rabin, Stanford Law School, Date posted to database: October 21, 2010 Last Revised: October 21, 2010

The list covers all articles announced on the Torts & Products Liability e-Journal in the last 60 days.

--CJR

Robinette Named Editor of Volume 6 of Appleman's Insurance

TortsProf's own Chris Robinette is the editor for Volume 6 of the venerable treatise, Appleman on Insurance (Law Library Edition) (Lexis Nexis 2011).  In addition to editing the volume, Robinette will also be writing the introduction.   Volume 6 will focus on the topic of automobile insurance.  As new volumes of the New Appleman Library Edition are published, corresponding volumes of Appleman on Insurance 2d and Appleman Insurance Law and Practice will be retired.

- SBS

Personal Injury Roundup No. 88 (12/10/2010)

My exam's written and now I'm just counting down the days to get to start reading 70 answers.  But we've got the Roundup to keep us warm, right?

New Suits

• Suit brought in connection with metal bats in Little League (Sun Times).  (Here's a page summarizing the data as of 2006 on the increased speed of hits from metal bats.)
• Parents allege that Four Loko (energy/alcohol drink) led to son's accidentally shooting himself (ABC News).
• $20 million sought in suit against transit authority for running over two pedestrians (one of whom died) (OregonLive.com).

Appeals

• Excessive force defense verdict upheld in case where police officer shot at suspect 14 times (Reuters).
• Cert. granted in climate change nuisance suit against utilities (ABA Journal).

Reform, Legislation, Policy

• FDA loses appeal, so can't regulate electronic cigarettes (Business Week)
• Interesting look at settlement mills (Drug & Device Law Blog discussing Engstrom piece available here)

Damages

• $1 in punitive damages against parish for sex abuse case ($30 million in punitives against the individual defendant) (Philadelphia Inquirer)
• $66 million verdict against exercise equipment manufacturer in case where machine fell on physical therapy assistant (Boston Herald)

Trials, Settlements and Other Ends

• First Levaquin trial ends in $1.82 million verdict against J&J (NY Times).
• Class certification denied in McDonald's obesity litigation (Mass Tort Defense).

Miscellaneous

• Need a res ipsa example?  Here you go (WXVT.com).
• Bed bugs as a niche (FindLaw)

Have a great break, and happy grading!

--BC

House To Take Up Food Safety Bill, But Does It Matter To Consumers?

From The Hill:

The House this week will consider legislation to modernize the nation's food-safety protections, a top Democrat indicated Tuesday.

Although the Senate passed a food-safety bill last week, it contained tax provisions that, according to the Constitution, must originate in the House.  

House Majority Leader Steny Hoyer (D-Md.) told reporters Tuesday that the lower chamber this week will take up a new House bill, in hopes of sending it back to the Senate before the weekend.

But would more recalls matter to consumers?   No, says a recent New York Times article:

Consumers also seem to be tuning out information on recalls. Researchers at the Food Policy Institute at Rutgers found only 6 in 10 people take the time to look for problem products at home.

- SBS

Twerski & Cohen on "Resolving the Dilemma of Non-Justiciable Causation in Failure-to-Warn Litigation"

Aaron Twerski (Brooklyn) and Neil Cohen (Brooklyn) have posted "Resolving the Dilemma of Non-Justiciable Causation in Failure-to-Warn Litigation."  The abstract provides:

Failure-to-warn cases represent a significant portion of product liability law, yet the core concepts of this body of law are poorly developed. In particular, the standard tort requirement that the injured party demonstrate a causal connection between the defendant’s violation of duty and the injury simply does not work in the vast majority of failure-to-warn cases. A substantial body of social science literature demonstrates that, in all but extreme cases, it is impossible for an injured party to demonstrate by a preponderance of the evidence, and thus for a court to credibly conclude, that she would have acted differently had a warning been provided. Thus, a rigorous application of the causation requirement would result in defeat for most injured parties. Yet, some injuries certainly could be saved by effective warnings, even if those beneficiaries cannot be easily be identified. A legal system that would deny recovery to virtually all injured parties because it cannot be ascertained which parties’ injuries would have been prevented under-compensates victims and under-deters dangerous practices by product manufacturers and distributors and, thus, does not fulfill the goals of the tort system. Some courts and commentators have recognized this problem, and have put forth a variety of mechanisms to resolve it. Those mechanisms - such as “heeding presumptions” and enterprise liability - suffer from the opposite problem. They compensate injured parties without regard to whether there is a causal connection between the injuries and the lack of a warning. The result is over-compensation of plaintiffs, over-deterrence of manufacturers, and under-deterrence of risky consumer conduct. This, too, fails to fulfill the goals of tort law. In this article, the authors propose eliminating causation as a separate requirement in most failure-to-warn cases and instead determine an injured party’s recovery by allowing proportional recovery, taking into account both the severity of the manufacturer’s fault in failing to warn of the dangers associated with its product and the likelihood that injuries would have been saved by a warning. Such a system would recognize that some failures to warn are more egregious than others and would generate a closer match between aggregate compensation and aggregate injuries caused by a failure to warn.

- SBS

Goldberg on Liability for Economic Loss in Connection with the Deepwater Horizon Spill

At the request of Ken Feinberg, the administrator of BP's compensation fund for the Deepwater Horizon Spill, John Goldberg (Harvard) prepared an analysis of BP's potential liability for economic loss claims under the Oil Pollution Act (OPA).  Goldberg concludes:

Under OPA, a person may obtain compensation for economic loss from a party responsible for a spill if she can prove that her loss is "due to" harm to property or resources that "result[s] from" the spill, irrespective of whether she owns that property or those resources.  This statutory language is best understood to allow recovery only by those economic loss claimants who can prove that they have suffered economic loss because a spill has damaged, destroyed, or otherwise rendered physically unavailable to them property or resources that they have a right to put to commercial use.  Thus, if a spill were to deprive commercial fisherman of expected profits by killing fish they ordinarily would catch and sell, or by causing authorities to bar the fishermen from accessing those fish for a period of time, the fishermen would be entitled to recover.  By contrast, operators of beach resorts in areas physically unaffected by the spill, but that nonetheless suffer economic loss because of a general downturn in tourism resulting from the spill, are among those who are not entitled to recover under OPA.

(Page 6).  Economic loss claims under state law are also discussed briefly. 

You can download the full report here:  Download Goldberg Report on Economic Loss Liability 11 22 10

- SBS

Possible Tort Reform in FL?

Florida Governor-elect Rick Scott suggested various tort reform measures as part of his campaign, including changes to the state's bad faith laws, immunity for doctors treating Medicaid patients, and changes to the expert witness standards.  The St. Augustine Record has more on the tort reform possibilities in Florida.

- SBS

Personal Injury Roundup No. 87 (12/3/10)

New Suits

• Maryland bed bug liability suits (WaPo)

Appeals

• MD:  Court of Appeals reinstates a wrongful death suit under FELA, finding the trial judge erred in failing to give an instruction on the inapplicability of assumption of risk.  (Miller/The Maryland Injury Lawyer Blog)
• More on the negligent-golfing case on appeal in NY (Olson/Overlawyered)
• Washington Supreme Court abandons economic loss rule (Jackson on Consumer Class Actions and Mass Torts via Olson/Overlawyered)

Reform, Legislation, Policy

• Hospital safety:  No improvement seen--Is malpractice litigation at fault?  (Conk/Otherwise)
• Malpractice Premiums and Caps (Miller/Accident and Injury Lawyer Blog)
• Alberto Bernabe on med mal waivers  (Torts)
• PA:  Rendell vetoes "stand your ground" (Philadelphia Inquirer)

Trials, Settlements and Other Ends

• "Extenze" class action settlement (Frank/Point of Law)

Miscellaneous

• More on toxicogenomics (Couch/Abnormal Use)
• Stella Liebeck:  The Movie (Turkewitz/New York Personal Injury Law Blog)
• NHTSA report indicates a rise in drug-related auto driver fatalities in the last 5 years (Day on Torts)

--CJR

PA: Governor Rendell Vetoes "Stand Your Ground"

Earlier this week, Governor Ed Rendell of Pennsylvania vetoed the "stand your ground" expansion of the common-law "castle doctrine." 

"The bill as passed encourages the use of deadly force, even when safe retreat is available, and advances a 'shoot first, ask questions later' mentality," Rendell said in a statement issued Saturday afternoon. "I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves."

The Pennsylvania District Attorneys' Association supported the veto: 

"Pennsylvania already has a strong castle doctrine," said Dauphin County District Attorney Edward M. Marsico Jr., president of the state's District Attorneys Association. "Citizens already possess the right to defend themselves in their homes."

Governor-elect Tom Corbett has indicated he would sign "stand your ground" if it reaches his desk next year.  The Philadelphia Inquirer has the story.

--CJR