TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, July 29, 2011

Culhane on the NFL Concussion Suit

My Widener colleague John Culhane has published his analysis of the NFL concussion suit, "Concussions and Cigarettes," in Slate.


July 29, 2011 in Sports | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 27, 2011

TX: Four Loko Stroke Case Filed

A Texas man has filed products case against the manufacturer of Four Loko, alleging that the combination energy drink/alcoholic beverage caused him to suffer a stroke.  He seeks $75,000 in compensatory damages, as well as punies. has the story.


July 27, 2011 in Current Affairs, Food and Drink, Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, July 25, 2011

Case Study on Impact of Tort Reform in Mississippi

Mark Behrens (Shook, Hardy) has just published Medical Liability Reform:  A Case Study of Mississippi, 118:2 Obstetrics & Gynecology 335 (Aug. 2011).  The article examines the impact of tort reform in Mississippi on physicians, particularly ob-gyns, insured by the Medical Assurance Company of Mississippi (MACM), the leading medical liability insurer in the state. The article compares the number of tort suits against these physicians by year from 1986 to 2010.  The article concludes that "Mississippi's tort reform laws were associated with a steep drop in lawsuits against MACM-insured physicians."

Download Behrens Medical_Liability_Reform__A_Case_Study


July 25, 2011 in Current Affairs, Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, July 21, 2011

Three by Green

Michael Green (Wake Forest) has posted 3 pieces to SSRN.  First:  The Impact of the Civil Jury on American Tort Law.  The abstract provides:

This article, a contribution to a symposium on the what American tort law can contribute to the rest of the world expresses skepticism that a considerable swath of U.S. tort law would be of interest to the rest of the world. The thesis is that American tort law has been shaped by the existence of the civil jury, unique to the U.S, and areas of domestic tort law so influenced have no utility internationally. The article catalogues many such areas and discusses several of them.

Second:  The Unappreciated Congruity of the Second and Third Restatements on Design Defects.  The abstract provides:

There was much criticism of the Restatement (Third) of Torts: Products Liability for its backtracking after decades of strict products liability, spurred by § 402A of the Second Restatement of Torts. This article delves into what the founders - Prosser, Keeton, Traynor, Wade, and others - intended in adopting liability without fault when a product was defective. It concludes that the combination of negligence and § 402A are equivalent to the Third Restatement, especially when one recognizes that § 3 of the Third Restatement captures what the founders intended with their defectiveness standard. In the course of this inquiry, the article takes strong issue with George Priest's claim that § 402A was only meant to address manufacturing defects.

Third:  Introduction:  The Third Restatement of Torts in a Crystal Ball.  The abstract provides:

This article provides commentary on a broad range of articles about the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. It expresses caution about contemporary efforts to predict whether and how the Restatement will influence tort law.


July 21, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

NFL Players Suing Over Head Injuries

The WSJ Law Blog has the details of the suit, which names both the league itself and helmet maker Riddell.


July 21, 2011 in Sports | Permalink | Comments (0) | TrackBack (0)

A Rebuttal to the Atlantic Amtrak Piece

Yesterday Chris posted a link to an Atlantic piece, written by Andrew Cohen, critical of the cap on damages in railroad accident cases.  Ted Frank has some pointed criticisms that are worth reading as well.


July 21, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (0)

Wednesday, July 20, 2011

Atlantic Article on Damage Caps in Amtrak Reform Act

The anti-cap article, written by Andrew Cohen, discusses the 2008 train crash in Chatsworth, CA caused by a texting engineer.  Cohen quotes portions of Superior Court Judge Peter Lichtman's opinion as he divides the $200M capped damages among the victims, including 24 fatalities.


July 20, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 19, 2011

Another Torts Flick Premieres!

No, it's not Harry Potter.   It's Mann v. Ford on HBO.   

Joining the summer premieres of Hot Coffee and InJustice, Mann v. Ford presents the allegedly negligent contamination of the Ramapough Indian's land near Ford's assembly plant in Mahwah, New Jersey.   A full synopsis is available here.  

The documentary premieried last night, but will air again this week.  Check your local HBO listings.


July 19, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, July 18, 2011

Cooley Sues Law Firm for Defamation

Brian Leiter reports that Thomas Cooley Law School has filed a complaint (pdf) against Kurzon Strauss and two of its lawyers based on its web soliciation of clients for a class action against Cooley.   The complaint brings claims for defamation, tortious interference with business relations, breach of contract and false light.  Inside Higher Ed also has more on the story.


July 18, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, July 15, 2011

Two by Geistfeld

Mark Geistfeld (NYU) has posted two pieces to SSRN.  First:  Tort Law and the Inherent Limitations of Monetary Exchange:  Property Rules, Liability Rules, and the Negligence Rule.  The abstract provides:

Legal scholars have extensively analyzed legal entitlements in terms of more fundamental component parts, most notably with the remedial structures entailed by property and liability rules. Contrary to the claim made by some scholars, I argue that the negligence entitlement is not fully constituted by property rules, liability rules, or any combination thereof. The entitlement that generates the negligence rule, though partially constituted by both property and liability rules, is best described as a behavioral rule that obligates duty-holders to exercise reasonable care. The breach of this primary duty creates a second-order duty to pay compensation for the proximately caused physical harms, but the payment of compensatory damages does not fully exhaust or satisfy the underlying entitlement. This component of the entitlement explains why duty-holders are subject to punitive damages and perhaps even criminal negligence liability if they choose to act unreasonably in exchange for the payment of compensatory damages. The entitlement takes this form due to the inherent inadequacy of the compensatory damages remedy, an inadequacy that is most pronounced in cases of wrongful death but applies more generally to many instances of physical harm. The article concludes by identifying the distinctive features of the negligence entitlement that must be accounted for by any normative theory seeking to adequately explain tort liability, a condition that is not satisfied by prominent interpretations of tort law, including leading accounts based on the fault principle, pluralism, allocative efficiency, and corrective justice. The underlying rationale for tort liability cannot be derived from a structural (non-normative) analysis of entitlements, but the entitlement structure of the negligence rule still has important implications for the normative theory of tort law.

Second:  Legal Ambiguity, Liability Insurance, and Tort Reform.  The abstract provides:

Legal ambiguity refers to an unknown outcome regarding the requirements of a legal rule or body of law, as applied to a set of known facts, for which the probability cannot be confidently or reliably defined and must be estimated by decision makers. The legal ambiguity generated by the tort system became significantly more pronounced over the course of the twentieth century, making the market for liability insurance increasingly volatile. Without reliable estimates of the relevant probabilities (the likelihood of a policyholder incurring tort liabilities and the amount thereof), insurers must use subjective estimates of risk that are prone to forecasting errors with the resultant swings in profits and losses. Legal ambiguity increases the cost of capital for insurers (and therefore premiums) and creates an expectations-driven pricing structure that is prone to cyclical volatility, including periods of substantial underwriting losses that disrupt the supply of liability insurance. Due to these market disruptions, liability insurers have supported tort reform measures that reduce the unpredictability of the liability costs covered by the insurance policy, making it easier for them to set premiums. The movement has been successful, and the vast majority of states by now have legislatively curbed tort liability, with common reforms involving damage caps and the elimination of joint and several liability. Although different in substance, the varied reforms share the trait of significantly reducing systemic legal ambiguity, which in turn makes it easier for liability insurers to forecast their expected liabilities. Tort reform has become biased towards reductions of ambiguity that enhance the predictability of liability insurance, regardless of whether the reforms address the problem of ambiguity in a fair or just manner. Each of these factors has become increasingly important over the course of the twentieth century, producing an evolutionary path for the tort system that is now shaped by the interplay between legal ambiguity, liability insurance, and legislative tort reform.


July 15, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 14, 2011

A couple of amusement park safety updates

I just returned from a long trip with my kids, including a couple of stops at amusement parks (and one at the ever-amazing City Museum, which appears to have removed the signs criticizing lawyers who had sued it, much to my daughter's disappointment). 

Unfortunately, there have been some tragic events at parks lately; I've been posting about them at  Quick summaries are here, with more details at the blog:

  • Last week, Iraq War veteran Sgt. James Hackemer, who lost both of his legs in an explosion in the war, was thrown from Darien Lake's Ride of Steel roller coaster.  The ride uses a lap bar to keep riders in; it appears that Sgt. Hackemer's lack of legs likely contributed to the accident.  According to  the ride's safety warnings, riders are supposed to be required to have both legs, but Sgt. Hackemer was permitted to ride anyway; the local authorities have concluded that the park violated its own policies in permitting him to do so.  His family has publicly stated that they do not blame the park for his death.  Rep. Ed Markey (D. Mass.) has renewed his call for CPSC oversight of fixed-site amusement parks in response to the death.
  • Last month, eleven-year-old Abiah Jones fell to her death from a Ferris Wheel at Morey's Piers.  Her family has filed suit, alleging both a design defect and negligence in operation.


July 14, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 13, 2011

Foxy Brown to File Malicious Prosecution Case

According to her attorney, rapper Foxy Brown plans to file a malicious prosecution case for between 1 and 5 million dollars.  The alleged malicious prosecution stems from an alleged mooning incident.  Brown was issued a protective order when she pled guilty to "menacing" a neighbor.  She was charged with violating the protective order by mooning the neighbor.  The trial was to begin yesterday, but the neighbor decided she wanted to put the incident behind her.  The prosecution asked for the charges to be dropped.  Bed-Stuy Patch has the details


July 13, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 12, 2011

Battle of the Tort Reform Flicks

A few weeks ago, I mentioned Hot Coffee on HBO, which presented a plaintiff-friendly perspective on topics of tort reform, judicial elections and mandatory arbitration.

Now, InJustice presents a more-defense oriented point of view and focuses on mass torts and class actions.   Daniel Fisher at Forbes has a critique of the film. 


July 12, 2011 | Permalink | Comments (1) | TrackBack (0)

Monday, July 11, 2011

Wrongful Death Case Involves Interesting Evidence Ruling

In California, a woman sued her ex-husband for the wrongful death of her daughter, alleging that the husband's sexual abuse caused the girl's suicide.  Last week, the appellate court held that taped phone conversations could constitute "adoptive admissions" by the ex-husband.  The LA Times reports:  

"A jury could have found that a reasonable person, when confronted with accusations of sexual abuse of his stepdaughter over an extended period of time, would do more than simply say that he did not remember or might have mentally blocked it out," the 2nd District Court of Appeal found in its published opinion, dated Wednesday. The statements could be construed as "adoptive admissions" of the alleged acts of abuse, the court found.

A copy of the opinion is available here (pdf).


July 11, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, July 8, 2011

Rendleman on Coordinating Restitution with Compensatory and Punitive Damages

Doug Rendleman (W&L) has posted to SSRN Measurement of Restitution:  Coordinating Restitution with Compensatory Damages and Punitive Damages.  The abstract provides:

Courts apply compensatory damages, restitution, and punitive damages to formulate litigants’ civil remedies. The frequently contested policy justifications for these three remedies are often hazy and uncertain. The transitions between the three remedies are disputed. Lawyers and courts often misunderstand restitution with deleterious consequences for litigants and the administration of justice.

The American Law Institute’s completion of the Restatement (Third) of Restitution and Unjust Enrichment provides the legal profession with opportunities to dispel this haze and to clarify the distinctions. In addition to obviating defendants’ unjust enrichment, restitution with its measurement choices provides a midpoint on a continuum of the three remedies. Restitution’s policy justifications often overlap with compensatory damages at one end of the continuum and with punitive damages at the other.

This modest effort identifies wiser choices to aid lawyers’ and courts’ remedial decisions and seeks to improve the courts’ administration of litigants’ civil remedies. Focusing on the Restatement’s measurement choices for restitution, it explains familiar examples to analyze the choices between compensatory damages, restitution, and punitive damages and to locate the transitions between them.


July 8, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

Failure to Warn Suit Filed Against Tanning Salon

A 29-year-old Pennsylvania woman diagnosed with malignant melanoma has filed a failure to warn claim against a tanning salon.  She has been tanning since she was 16, and she went to defendant tanning salon from 2005 through 2009.  AboutLawsuits has the details.


July 6, 2011 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 5, 2011

"Friend Finder" Class Action Dismissed

The Recorder (via reports that Judge Richard Seeborg has dismissed the "Friend Finder" class action against Facebook for lack of injury. 

Thanks to Lisa Smith-Butler for the news item.



July 5, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Monday, July 4, 2011

Happy 4th of July!


 A happy 4th of July to all TortsProf readers!

- TortsProfs

July 4, 2011 | Permalink | Comments (1) | TrackBack (0)

Friday, July 1, 2011

Top 10 Recent SSRN Torts & Products Liability Downloads

For all papers announced in the Torts & Products Liability e-Journal in the last 60 days, these papers have the most downloads:

Rank Downloads Paper Title
1 2321 Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement
Morgan Leigh Manning,
University of Tennessee, Knoxville - College of Law,
Date posted to database: June 10, 2011
Last Revised: June 12, 2011
2 158 The Contribution of a Comparative Vision of Tort Law in a Global Perspective: Invisible Hand Explanation Towards the Discovery of the Thought of the Law
Gino Michele Domenico Arnone,
University of Turin - Faculty of Law,
Date posted to database: May 30, 2011
Last Revised: May 30, 2011
3 135 Punishment and Compensation: A Comment
John Gardner,
Professor of Jurisprudence, University of Oxford - Faculty of Law,
Date posted to database: May 18, 2011
Last Revised: June 7, 2011
4 123 Two Culture Problems in Law and Economics
Alan Schwartz,
Yale Law School,
Date posted to database: May 15, 2011
Last Revised: May 26, 2011
5 104 Commensurability and Agency: Two Yet-to-Be-Met Challenges for Law and Economics
Alon Harel, Ariel Porat,
Hebrew University of Jerusalem - Faculty of Law, Tel Aviv University,
Date posted to database: June 13, 2011
Last Revised: June 13, 2011
6 95 The Limits of Tort Privacy
Neil M. Richards,
Washington University School of Law,
Date posted to database: June 13, 2011
Last Revised: June 16, 2011
7 90 The Hidden Legacy of Palsgraf: Modern Duty Law in Microcosm
W. Jonathan Cardi,
Wake Forest University,
Date posted to database: May 27, 2011
Last Revised: June 13, 2011
8 83 Inside Agency Preemption
Catherine M. Sharkey,
New York University (NYU) - School of Law,
Date posted to database: May 7, 2011
Last Revised: May 14, 2011
9 75 Mass Torts and Due Process
Sergio J. Campos,
University of Miami - School of Law,
Date posted to database: May 14, 2011
Last Revised: June 22, 2011
10 73 Permanent Injunctions as Punitive Damages in Patent Infringement Cases
Paul J. Heald,
University of Georgia - School of Law,
Date posted to database: May 26, 2011
Last Revised: June 9, 2011


July 1, 2011 in Scholarship | Permalink | Comments (1) | TrackBack (0)