TortsProf Blog

Libeled in a Tweet?

The ABA Journal reports that Courtney Love's former lawyers have filed a libel suit against her based on a tweet she sent after she terminated the representation.

Thanks to Lisa Smith-Butler for the story.

- SBS

Happy Memorial Day!

Memorial Day was originally known as "Decoration Day," a reference to the practice of decorating the graves of war veterans.   In 1971, Congress declared Memorial Day a federal holiday to be celebrated on the last Monday in May.  On May 2, 2000, then-President Bill Clinton issued a memorandum calling on Americans "to pause for one minute at 3:00 p.m. (local time) on Memorial Day, to remember and reflect on the sacrifices made by so many to provide freedom for all."

You can find more information about the history of Memorial Day from the History Channel.

- SBS

 

Personal Injury Roundup No. 105 (5/27/11)

New Cases

• NC:  Plaintiff opens argument in dental malpractice claim alleging the dentist pulled too many teeth.  (The Herald-Sun)

Appeals

• MD:  Plaintiff awarded new trial in lead paint case after jury verdict for landlord.  (Miller/The Maryland Injury Lawyer Blog)

Damages

• NY:  Fractured jaw pain-and-suffering award reduced on appeal to $175,000.  (Hochfelder/New York Injury Cases Blog)
• CT:  $58M med mal verdict for injuries to baby during a 2002 cesarean section.  (NBC Connecticut)

Reform, Legislation, Policy

• Somin on Federalism and Tort Reform (VC)
• Frank on Somin on Federalism and Tort Reform (Point of Law)
• Olson on Federalism and Tort Reform (Overlawyered)
• Bernabe on ATRA's Defense of Tort Reform (Torts)
• TX:  Senate unanimously passes "loser pays" bill.  (Texas Tribune)
• WI:  The state dipped into a med mal fund for the general revenue, now Republican lawmakers want to pay it back.  (Green Bay Press Gazette)
• Med mal cases in freefall  (The Pop Tort)

Miscellaneous

• Ron Miller on Settlement Tactics in Large PI Cases (The Maryland Injury Lawyer Blog)
• Toronto Law Journal has a special issue for Ernest Weinrib (Solum/Legal Theory Blog)

--CJR

Are Congress's Med Mal Reform Efforts Unconstitutional?

That's Walter Olson's provocative question, echoing Georgetown's Randy Barnett's op-ed.  Much of tort law is, of course, fundamentally a state law issue, and -- the argument goes -- the powers granted to Congress just aren't broad enough to capture pretty big parts of tort law, including its applicability to medical malpractice litigation.

--BC

AALS Torts and Compensation Section Newsletter Solicitation

Request for information for Torts and Compensation Section Newsletter: The AALS Torts and Compensation Section each year produces a newsletter listing: (1) torts symposia published in the last year, (2) upcoming torts symposia, (3) recent torts law review articles (U.S.) (4) selected torts articles from Commonwealth Countries, (5) books.  The process of compiling the newsletter is now underway.  If you know of material that should be included, please forward the relevant citations and other information to Professor Jennifer Wriggins, Sumner T. Bernstein Professor of Law, University of Maine School of Law, [email protected].  The deadline for inclusion is August 15, 2011.  The newsletter will be issued in fall 2011.  

 

--CJR

Nominations for the 2012 Prosser Award

The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award for 2012.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ...."   The three most recent distinguished recipients are Honorable Guido Calabresi, Oscar Gray, and Dan Dobbs.  Past recipients also include luminaries such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award.  Nominators can renew past nominations by resubmitting past nominations in a timely manner.  Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee.  The announcement of the award will be made at the annual AALS meeting in January, 2012.   

Nominations, accompanied by a brief supporting statement (required), should be submitted to Prof. Jennifer Wriggins, Secretary, AALS Torts and Compensation Section, either by regular mail or e-mail at [email protected].  Nominations must be received no later than 5 pm eastern time (U.S.) on Tuesday, July 5, 2011.  E-mail submissions at [email protected] are preferred.   If you prefer to mail the nominations, please send them to the address below:

Prof. Jennifer Wriggins

Sumner T. Bernstein Professor of Law

University of Maine School of Law

246 Deering Avenue

Portland, ME 04102

--CJR

Abraham on Insurance and Oil Spills

Ken Abraham (Virginia) has posted to SSRN Catastrophic Oil Spills and the Problem of Insurance.  The abstract provides:

The BP oil spill of 2010 focused considerable attention on the operating conduct of BP, on the potential liability of BP and other entities associated with the Spill, and on the Fund that BP established to provide compensation to victims of the Spill. Much less attention has been paid, however, to the nature and scope of insurance covering losses caused by catastrophic environmental disasters such as oil spills. BP’s establishment of the Gulf Coast Claims Facility, and the compensation that will be paid by that facility, are likely to dampen awareness of these mismatches. What might otherwise been a very dramatic demonstration of the ways in which our insurance and liability systems fall short in such situations will probably be much more muted. Future spills, however, may not follow this pattern. Understanding the structure of insurance and liability that are and are not available when spills occur is therefore critical to developing satisfactory approaches to dealing with the consequences of spills.

This Article identifies the matches, and mismatches, between the losses resulting from oil spills, the insurance available to the victims of spills, the liability of the parties responsible for losses caused by spills, and the insurance available to the parties who face such liability. The Article then attempts to make sense of the situation it has identified, considering three explanations for the mismatches: difficulties associated with proving the cause of pure economic loss, traditional challenges to the insurance of pollution loss and liability, and pre-existing portfolio diversification by potential spill defendants that discourages the purchase of large amounts of insurance. Finally, the Article critically analyzes two proposals that have been made for remedying the insurance mismatches in this field: the imposition of an ex ante drillers’ tax on the amount of their potential liability in excess of their combined assets and liability insurance, and the imposition of mandatory liability insurance requirements far in excess of the amounts of insurance that are currently available or purchased.

--CJR

SC of IL: No Social Host Liability for Underage Drinking Despite Voluntary Undertaking Argument

Late last week, the Supreme Court of Illinois denied liability in a social host case for underage drinking.  Plaintiff's decedent, age 18, attended a party at defendants' house.  He was a friend of the defendants' son, who was hosting the party.  Plaintiff's decedent allegedly consumed alcohol at the party.  Shortly after leaving the house, he died in an automobile accident.  The interesting doctrinal angle is the allegation that the defendants made a voluntary undertaking to supervise the party and prohibit drinking.  The Restatement (Second) on voluntary undertaking is discussed in detail.  The case is available here.

Thanks to Mark Weber (DePaul) for the tip.

--CJR

Supreme Court Preview - Call for Papers

The Charleston Law Review invites submissions for its annual Supreme Court Preview volume.  This year’s Preview will feature a foreword by Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California Irvine School of Law.  The 2009 Supreme Court Preview volume was cited by Justice Clarence Thomas in his concurring opinion in FCC v. Fox Television Stations Inc., 129 S. Ct. 1800 (2009). 

We welcome an article or essay addressing a case before the Court in its October 2011 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court. 

The Supreme Court Preview is published to coincide with the opening of the October 2011 Term.  We therefore ask that work be submitted no later than August 1, 2011.  Submissions will be reviewed on a rolling basis beginning June 1, 2011.  Please direct submissions and any questions about our Supreme Court Preview to Mollie Brunworth, Editor in Chief, via email at mgbrunworth [at] charlestonlaw.edu.

- SBS

Professor of the Year

Congratulations to TortsProf's own Chris Robinette, who was voted "Professor of the Year" by the Class of 2011 at yesterday's commencement at Widener Harrisburg.  Having observed Chris's teaching when we both were at Temple together, I can attest to his skill and dedication in the classroom.   It is a well deserved honor. 

- SBS

Personal Injury Roundup No. 104 (5/20/11)

New Cases

• Rakofsky v. the Internet.   (TortsProf)

Trials, Settlements and Other Ends

• DOJ taps Sheila Birnbaum to administer the fund for ground zero workers. (Bloomberg Bus Week, Huff Post)
• Judge's impartiality questioned in $322 million asbestos verdict in Mississippi.  (Overlawyered)

Damages

• Bratz manufacturer MGA seeks $177 million on punitive damages from rival Mattel.  (AmLaw Daily)

Reform, Legislation, Policy

• Med Mal reform bill passes House committee, but passage by full Congress unlikely. (CT Mirror)
• NC works on workers-comp reform.  (PR Newswire)
• TN Senate passes cap on non-economic damages. (Nashville City Paper)
  

Miscellaneous

• As we work on our summer projects, Opinio Juris features posts by the Outgoing Exective Articles Editor of the Chicago Law Review about the law review submission process.

--SBS

Argument Over Engle Progeny Verdict

The Engle progeny tobacco cases in Florida are continuing apace, including through the appellate process.  On Tuesday, a case that ended with a total of a $15.75 million verdict was argued in Florida's First Circuit Court of Appeals.  As usual, the focus was on the plaintiff's knowledge of the risks of tobacco.

--BC

Digging Deeper, Defamation Suit Filed by Rakofsky

After by virtually all accounts being incompetent in his attempt to present a defense to murder charges, Joseph Rakofsky chose not to focus solely on how not to do that again, but instead has sued virtually everyone who's mentioned his adventures in D.C. court.  That includes Eric Turkewitz, who has, to say the least, an answer for Rakofsky.

You can find the complaint in what has been dubbed "Rakofsky v. Internet" here.

--BC

PA: Med Mal Filings Hit New Low

From the Public Information Unit of Pennsylvania Courts:

HARRISBURG, May 18, 2011 — Chief Justice of Pennsylvania Ronald D. Castille today announced the release of state court system data on medical malpractice case filings and verdicts for 2010 that show declines in the number of lawsuits filed statewide for a sixth consecutive year.

 In 2010, there were 1,491 filings, representing a 38.5 percent decline from the “base years” 2000-2002 (shown in Table 1, attached).  In Philadelphia, the state’s judicial district with the largest caseload, the decline has been by nearly 70 percent during the same period.

 The base years are the period just prior to two significant rule changes made by the Supreme Court. The first change required attorneys to obtain from a medical professional a certificate of merit that establishes that the medical procedures in a case fall outside acceptable standards. A second change required medical malpractice actions to be brought only in the county where the cause of action takes place — a move aimed at eliminating so-called “venue shopping.” 

 Tables 2 and 3 detail medical malpractice jury and non-jury verdict amounts for 2010.  In comparison to earlier years, Tables 2 and 3 show that 2010 had the fewest number of jury verdicts in comparison to earlier years. The tables also show more than 80% of the verdicts were for the defense.

 “Pennsylvania’s Judiciary collaboratively addressed a complex medical malpractice litigation crisis, and the latest figures show the progress made in the last seven years,” Chief Justice of Pennsylvania Ronald D. Castille said. “One of our fundamental priorities is to assure the Commonwealth’s citizens that the legal process will not be abused in malpractice cases. We’re very encouraged by these statistics. The crisis is over.”

 The AOPC began the systematic collection of data from each of Pennsylvania’s 67 counties four years ago as part of the Judiciary’s commitment to intergovernmental collaboration in addressing medical malpractice litigation issues. Counties also began to methodically track med mal case information to enhance the focus and accuracy of data collections. New statewide Rules of Civil Procedure were promulgated — Pa.R.C.P. 1018 and 1042.16 — to help identify med mal cases together with a new rule of Judicial Administration — Pa.R.J.A. 1904 — to codify the reporting requirements. An extensive collection of data, rules and other information may be viewed on the Medical Malpractice resource page of the Pennsylvania Judiciary’s Web site at: http://www.pacourts.us/Links/Media/MedicalMalpractice/default.htm

--CJR

Two on Preemption

Cathy Sharkey (NYU) has posted to SSRN Inside Agency Preemption.  The abstract provides:

A subtle shift has taken place in the mechanics of preemption, the doctrine used to determine when federal law displaces state law. In the past, Congress had been the leading actor, with courts and commentators focusing almost exclusively on the precise wording of its statutory directives as clues to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes - an ascendancy unchecked by the change in Presidential administrations. This Article confronts the profound implications for the administrative rulemaking process caused by the ascendancy of federal agencies in the preemption realm. Stakeholders with vested interests in preemption disputes, such as state governmental organizations and other representatives of state interests, state attorneys general, consumer and business-oriented organizations, and private litigants, can continue to ignore the preemptive rulemaking processes within federal agencies only at their peril.

As this Article further shows, those processes are, in and of themselves, rich areas of investigation. Taking a unique perspective "inside" the preemptive rulemaking processes within five major federal agencies that regulate in areas as diverse as health and safety, banking, and the environment, the Article presents the first look at agencies’ responses to President Obama’s Memorandum on Preemption and their efforts to ensure compliance with the relevant provisions of the Federalism Executive Order 13132 governing preemptive rulemaking.

With this empirical grounding in agency practice, the Article addresses possibilities for reform, including a novel attorney general preemption notification provision and a blueprint for external review of newly proposed internal oversight procedures. The specific reform measures are guided by the twin overarching goals of (1) creating a "home" within agencies for consideration of the federalism values at stake in preemptive rulemaking and ensuring participation in the rulemaking process by suitable representatives of the state regulatory interests; and (2) establishing a system of internal agency policing of the empirical and factual predicates to arguments for preemption, coupled with external oversight. This journey inside agency preemption charts preemption’s future path.

UPDATED:  Drug & Device Law discusses Sharkey's article here.

Ronen Perry (Haifa) has posted to SSRN Differential Preemption.  The abstract provides:

Preemption is a constitutional law doctrine whereby state and local authorities are deprived of their powers in particular areas governed by federal law. In setting the boundaries of state sovereignty within a federal polity, it constitutes one of the pillars of the federal political structure. Viewed differently, preemption is one of the strongest legal unification methods. Recent cases like Williamson v. Mazda and Bruesewitz v. Wyeth highlight the growing salience of preemption in contemporary legal discourse. The Article focuses on a highly important and distinctive niche in preemption debate, namely the interrelation between federal maritime law and state law. It offers an original theoretical framework for maritime preemption analysis, which supports a judicial heuristic standing in stark contrast to that advocated by prominent scholars as the late Professor David Currie. Although maritime preemption remains the source of inspiration and the focal point of the Article, the implications of the main idea are far-reaching. It may be pertinent to allocation of lawmaking powers in other areas and to other types of unification and harmonization methods, and may be applicable in other federal and federal-like systems, such as the European Union.

The Article contends that the preemptive force of federal maritime law should relate to prospective litigants’ ability to pre-select the law applicable to their interaction. Maritime preemption is generally based on the need for uniformity. However, and this is crucial, uniformity is not an end in itself, but a means for the protection and advancement of more fundamental federal interests. As the underlying justifications for uniformity weaken, so does the need for preemption. The Article ascertains that if the parties in a particular type of cases can easily select applicable law before the occurrence of the legally relevant incident, uniformity becomes unnecessary. Moreover, where pre-selection based on individual preferences is possible, uniformity may be detrimental to the common good, because it curtails regulatory competition. Under these circumstances, uniformity-driven preemption of state law should be avoided. If, on the other hand, pre-selection is impossible or impractical, the need for uniformity resurfaces, and preemption might be warranted.

--CJR

Class Certification Denied in YAZ MDL

Sean Wajert at Mass Tort Defense has the full story.

- SBS

Guest Blogger Robert Rabin: "The Legacy of New York Times v. Sullivan: Time for a Reassessment?"

A soldier is killed in Iraq, serving his country; his grieving father arranges a funeral service and burial in the nearby cemetery of their hometown church; a publicity-seeking religious sect, dedicated to hateful religious and homophobic disparagement, as well as denigration of the U.S. government and its military efforts, pickets the funeral service. Due to this arresting set of factual circumstances, Snyder v. Phelps, an intentional infliction of emotional distress claim by the dead soldier’s father against the leader and members of the sect, was afforded considerable media attention—triggering widespread outrage in support of the victimized father. Despite the outpouring of sympathy, however, when the case reached the U.S. Supreme Court, the Circuit Court of Appeals decision overturning a jury verdict in favor of the plaintiff was affirmed, 8-1, on First Amendment grounds, Snyder v. Phelps, 131 S.Ct. 1207 (2011).

 Snyder is, in fact, an easy case, in my view. When an individual or organized group engages in speech about a matter of public concern, the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) has generated more than a half-century of precedent standing for the proposition that tort victims’ common law rights are substantially limited. The authority of Times—the power of its articulation of the values promoted by free and robust public discourse—has spilled beyond the borders of that Civil Rights-era defamation claim by southern officials against a widely-respected national newspaper to related tort areas of protection of personality: privacy (Time, Inc. v. Hill, 385 U.S. 374 (1967)) and intentional infliction of emotional distress (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).

 Snyder is firmly in that tradition—and it is an easy case because it does not test the limited categories of tort that survive Times restrictions: fighting words and personally threatening harassment. But if that is all one should read into Snyder, the case is of little consequence. On the other hand, if it signals a corrective in the understanding of Times, which went off-course, as I see it, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that is another matter.

 Gertz, which involved allegations of a communist plot to promote claims of police brutality—allegations clearly within the zone of political discourse on a matter of public concern—shifted the focal point of inquiry from the content of defendant’s speech to the status of the victimized plaintiff (in particular, whether plaintiff was a “private figure” or not); providing lesser protection of a defendant’s speech in the latter category of cases. This was, in fact, a sharp divergence from the spirit of Times; in particular, promoting a marketplace of discourse on public issues as central to the meaning of a democratic society.

 Moreover, Gertz rested on insubstantial foundations: the conclusory rationale that “public officials” and “public figures” assumed the risk of defamatory statements by participating in public affairs; and the dubious proposition (treated almost apologetically in a Gertz footnote) that public figures could neutralize defamatory statements by their access to media forums. Whatever the questionable earlier salience of this distinction between public and private figure access to forums of retaliatory speech, in the online era of blogs and Facebook, it is now highly anachronistic.

 But does Snyder in fact signal a revival of the foundational premise of Times protection of speech on matters of public concern? The majority opinion’s invocation of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), emphasizing the purely private nature in that case of defendant’s incorrect attribution to plaintiff of a bankruptcy petition, as a point of contrast from the political protest involved in Snyder (and the concomitant failure to even mention Gertz or private figure considerations in the Snyder opinion), possibly points in that direction.

 And suppose that the Court were to resurrect the promotion of the public marketplace of ideas as the core meaning of Times: Would that signal the demise of unencumbered protection of personality-based tort claims? Not at all. Take as a single example (of many that might be offered), Johnson v. Johnson, 654 A.2d 1212 (R.I.1995), in which an ex-husband loudly proclaimed in a restaurant setting and in the presence of his ex-wife, that she was a whore. Quite correctly, in my view, the Rhode Island court dispatched the First Amendment claim as a defense to the ex-wife’s tort claim. There remains not the slightest reason for affording constitutional protection to the defendant’s indifference to the feelings of the victim in such a case, when it rises to the level of outrageous breach of norms of civility. If Snyder turns out to be a first step towards a revival of a public/private subject matter focal point, then it will stand as an easy case with substantial consequences.

--Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School

Monday's Guest Blogger: Robert Rabin

 
Robert L. Rabin is the A. Calder Mackay Professor of Law at Stanford.  An expert on torts and legislative compensation schemes, Robert Rabin is highly regarded for his extensive knowledge of the history and institutional dynamics of accident law. He is a prolific author on issues relating to the functions of the tort system and alternative regulatory schemes and is the co-editor of a classic casebook on tort law.

Professor Rabin is currently an advisor to the ongoing American Law Institute Restatement of Torts Third project and has been the program director for the Robert Wood Johnson Foundation Program on Tobacco Policy Research and Evaluation, as well as a reporter for the American Law Institute Project on Compensation and Liability for Product and Process Injuries and the American Bar Association Action Commission to Improve the Tort Liability System. He has been a member of the Stanford Law School faculty since 1970.

Personal Injury Roundup No. 103 (5/13/11)

Apologies for the lack of a roundup last week -- the twin thrills of drafting finals and a faculty retreat got in the way.

New Cases

• Defamation suit against Above the Law for suggesting an attorney had been accused of sexual assault multiple times rather than just once.  (Forbes.com)
• Another suit names the Vatican in sex abuse claims.  (NBC Chicago)
• Chinese gymnast sues a wide range of people for her paralysis in the 1998 Goodwill Games.  (AP)
• A mystery celebrity is being sued for allegedly exposing a partner to herpes.  (Examiner.com, and, just so we can link to it, TMZ.)

Trials, Settlements and Other Ends

• Plaintiff hurt on the land of an abandoned amusement park now owns it.  Lucky (?) him.  (ArkansasOnline.com)

Reform, Legislation, Policy

• House committee approves legislation that would, in med mal cases, cap non-economic and punitive damages, allow collateral source evidence, and impose a sliding scale for attorneys' fees.  (BusinessInsurance.com)

Damages

• Judge rules out punitive damages in California priest sexual abuse case. (Orange County Register)
  

Miscellaneous

• Not related to torts in any way, but this is, indeed, the greatest NYTimes correction of all time.  (Gothamist)
• Only related to torts in that it has to do with correlation and causation, but it's funny.  (FlowingData.com)

--BC

Pella Class Action Certified

A federal appellate panel in Chicago has upheld the certification of a class action against Pella, a manufacturer of windows, based on allegations of a design defect leading to rotting wood around the windows.  One of the issues was how to handle consumers who have not yet suffered economic loss.  The plaintiffs' counsel:

came up with a novel solution that persuaded U.S. District Judge James Zagel. He separated the window buyers into two classes: Consumers ...who have suffered economic loss, and a larger, nationwide group of those who haven't. But instead of seeking compensation for the latter class, he asked the judge to void Pella's 10-year warranty, pay for window inspections and other "declaratory" relief. The latter class would be allowed to file individual claims with Pella once rot was detected.

Consumer class actions are typically not in our wheelhouse, but the Chicago Tribune article quotes Sheila:

"This is an interesting twist in consumer fraud cases," said Sheila Scheuerman, an associate law professor at the Charleston School of Law who specializes in class actions. "Courts have been fairly hostile to classes where there are no injuries. But litigation always evolves to adapt to restrictions."

Full coverage from the Tribune is available here.

--CJR