TortsProf Blog

Libel Suit Over Fake Facebook Page

A Georgia middle school student has sued two classmates (along with their parents) for libel and intentional infliction of emotional distress based on a fake Facebook page that the classmates created in the student's name.  According to the Daily Report,

The lawsuit has helped [the student's attorney Natalie] Woodward achieve one important change for her clients—getting the page dropped from Facebook. Woodward made arrangements for Alex to tell her story on CNN this past Saturday morning with her lawyer. After they left the TV studio, Woodward said, Facebook called CNN to get Woodward's contact information. Three hours after the CNN segment aired, the fake Facebook page disappeared from the website.

Thanks to Lisa Smith-Butler for the alert.  

- SBS

Federal Judge Dismisses Economic Damages Claims Against Toyota

Behind a free registration wall, the National Law Journal reports that Judge Selna has "tentatively dismissed" the economic damages claims of Florida and New York consumers in the sudden acceleration litigation on the ground that they had not actually experieced any SUA problems.

- SBS

Top 10 Recent SSRN Torts & Products Liability Downloads

RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Torts & Products Liability Law eJournal
February 26, 2012 to April 26, 2012

Rank	Downloads	Paper Title
1	288	Poetry as Evidence Gregory Scott Parks, Rashawn Ray, Wake Forest University School of Law, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: February 27, 2012 Last Revised: February 27, 2012
2	167	The Empirical Effects of Tort Reform Theodore Eisenberg, Cornell University - School of Law, Date posted to database: April 2, 2012 Last Revised: April 2, 2012
3	139	Statutes in Common Law Courts Jeffrey A. Pojanowski, Notre Dame Law School, Date posted to database: March 19, 2012 Last Revised: March 28, 2012
4	90	Four Conceptions of Insurance Kenneth S. Abraham, University of Virginia School of Law, Date posted to database: March 6, 2012 Last Revised: March 6, 2012
5	82	Quasi-Property: Like, But Not Quite Property Shyamkrishna Balganesh, University of Pennsylvania - Law School - Faculty, Date posted to database: March 2, 2012 Last Revised: March 25, 2012
6	80	Why Courts Make Orders (and What this Tells Us About Damages) Stephen A. Smith, McGill University - Faculty of Law, Date posted to database: February 22, 2012 Last Revised: February 22, 2012
7	66	Forcing Forgetfulness: Data Privacy, Free Speech, and the 'Right to Be Forgotten' Robert Kirk Walker, University of California - UC Hastings College of the Law, Date posted to database: March 19, 2012 Last Revised: April 4, 2012
8	65	Graduated Consent in Contract and Tort Law: Toward a Theory of Justification Tom W. Bell, Chapman University - School of Law, Date posted to database: February 27, 2012 Last Revised: February 27, 2012
9	65	Protecting Reputation: Defamation and Negligence Eric Descheemaeker, University of Edinburgh - School of Law, Date posted to database: February 12, 2012 Last Revised: February 12, 2012
10	63	Of Frightened Horses and Autonomous Vehicles: Tort Law and its Assimilation of Innovations Kyle Graham, Santa Clara University School of Law, Date posted to database: February 21, 2012 Last Revised: February 21, 2012

--CJR

BP Proposed Settlement Agreement

...has been filed.  George Conk covers it at TortsToday.

--CJR

House Republicans Continue to Push Tort Reform

From the Blog of the Legal Times:

House Republican leaders continued to push a medical malpractice reform bill this week that caps non-economic damages at $250,000 and limits lawyer contingency fees, arguing that it would save taxpayers $41 billion and prevent defense spending cuts.

BLT has more. 

Thanks to Lisa Smith-Butler for the alert.

- SBS

Judge Awards $65k Damages for Loss of Pet

A Colorado judge has awarded $65,000 for the negligent death of the plaintiff's 18-month old dog.  A cleaning service mistakenly let the dog out, where she was hit by a car.  The dog crawled back into the house, and the cleaning service left the dying dog - knowing it had been hit - under the dining room table, where the owner found her dead upon returning 2 hours later.  

 Colorado News9 and Channel 7 have more.   

Thanks to Lisa Smith-Butler for the alert.  

- SBS 

Iqbal as Applied to Asbestos

Judge Stephen W. Wilson of the U.S. District Court for the Central District of California has issued what may be the first order following Iqbal in an asbestos case:  Download Order (Mtn to Dismiss Ps' Complaint) 4-17-12[1]. 

Thanks to Cary Sklaren for the tip.

--CJR

Gifford on Constitutional Constraints on Mass Tort Law

Don Gifford (Maryland) has posted to SSRN The Constitutional Bounding of Adjudication:  A Fuller(ian) Explanation for the Supreme Court's Mass Tort Jurisprudence.  The abstract provides:

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of tort litigation echoed the public law models of Abram Chayes and Owen Fiss that, a generation ago, described public interest litigation in areas such as civil rights. In rejecting public law tort litigation, the Court constitutionally imposes a more traditional model of adjudication, a model advocated by mid-twentieth century legal philosopher Lon Fuller but regarded as archaic by most contemporary scholars. I then evaluate the Court’s model on the basis of factors including the limits of judicial competence, the need to legitimize the judicial role in a democracy, and the related impact of constitutional separation of powers. I weigh these factors against arguments that unbounded adjudication is necessary both to compensate mass torts victims who otherwise would be denied recovery and to regulate corporate misconduct in the face of regulatory dysfunction. I conclude that a presumptive model of bounded adjudication would restrain unprincipled adjudication without imposing an institutional straightjacket.

(Via Solum/Legal Theory Blog)

--CJR

9th Circuit Preemption Case of Interest

On Monday, the Ninth Circuit issued its decision in Stengel v. Medtronic, Inc., No. 10-17755, slip op. [pdf]. The case involved a Medtronic pain-pump that the plaintiff alleged caused his paraplegia. The Ninth Circuit upheld dismissal based on Reigel v. Medtronic, Inc., 552 U.S. 312 (2008), and also denied plaintiffs' "failure to report" claim under implied preemption.

Drug & Device Law has a thorough examination of the opinoin. Arizona Central also has a report.

- SBS

In Support of New Hampshire's Early Offers Bill

          New Hampshire has proposed an early offers regime for medical malpractice cases.  It passed the Senate and will be up for a vote in the House shortly.  Pursuant to the bill, a patient who believes she is the victim of malpractice may send a notice of injury to the heath care provider requesting an early offer.  The provider has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam.  If extended, the offer must cover all economic loss—medical bills and lost wages.  There are modest amounts of pain and suffering damages included based on classification of the injury as determined using the National Practitioner Data Bank severity scale.  The patient then has 60 days to accept or reject the early offer.  If she accepts the offer, the case is over.  However, if she rejects the offer, she must prove gross negligence to a clear-and-convincing standard in order to recover.

            The bill is based on a proposal authored by Jeffrey O’Connell, with the change of allowing the claimant, not the health care provider, to initiate the early offer process.  I endorse the change and support the bill, though a similar system could be implemented without legislation.  Criticism of the bill has come from the perspective of claimants.  I’ll try to address specific points shortly, but I want to start with the general proposition that my support for the bill is largely based on its advantages for claimants.  There are other potential benefits—savings, etc.—but they are not the chief reason I support early offers. 

            Early offers allows, but does not force, a claimant to bypass the tort system.  Tort law has virtues, but among them are not certainty and swiftness.  Because of an understandable focus on individual justice, the tort system can be very uncertain and slow, with significant transaction costs.  There are many claimants who would prefer to have their claims resolved along insurance principles—with more certain payment for economic loss, taking care of the their urgent needs.  I have sat at the hospital bed of a catastrophically injured loved one.  After his health, my main concern was that he not be bankrupted by the enormous costs of life-saving care. 

            Some claimants have the resources to wait out a five-year malpractice struggle.  Some claimants may enjoy the adversarial proceedings of depositions, interrogatories, and cross examinations.  But all do not, and early offers gives them a possible way around them, while providing for basic economic loss much more swiftly.  What follows are some objections to early offers I’ve seen in various columns and posts.  I try to respond to each. 

Continue reading

2012 Clifford Symposium at DePaul Focuses on Marc Galanter

The 2012 Clifford Symposium on Tort Law and Social Policy, "A Celebration of the Thought of Marc Galanter," will take place on April 26 and 27 at DePaul University College of Law.  As always, the symposium is chaired by Stephan Landsman.

Thanks to Alberto Bernabe for the tip.

--CJR

Sharkey on Preemption and the Administrative Process

Cathy Sharkey (NYU) has posted to SSRN Preemption as a Judicial End-Run Around the Administrative Process?.  The abstract provides:

Judicial review of agency action under the Administrative Procedure Act (APA) and preemption challenges provide parallel proceedings for resolution of disputes over whether state and federal law are simpatico or at war. Douglas v. Independent Living Center of Southern California, Inc., provides an opportunity to reflect upon the coexistence of, and relationship between, these parallel tracks for adjudicating federal-state conflicts. Who is, and who should be, the ultimate arbiter of whether such federal-state conflicts exist and how to resolve them — agencies or courts?

In this Essay, I used Douglas as a lens through which to explore two concepts: first, whether courts can act as “prompters,” pushing federal agencies to discharge their duty to weigh in on whether a conflict between federal and state law exists in a given context; and second, whether there can exist a synergistic relationship between courts and agencies in determining whether a conflict between federal and state law exists. Specifically, I explore two questions left unresolved by the Court’s Douglas decision: (1) Why permit a preemption cause of action at all in situations where there is a viable administrative action? And (2) where parallel proceedings persist, should agency determinations receive varying degrees of deference in each?

--CJR

Bernstein on "Real Remedies for Virtual Injuries"

Anita Bernstein (Brooklyn) has posted "Real Remedies for Virtual Injuries" on SSRN. The abstract provides:

Social networking, which offers enhancements to human lives at a low marginal cost, also contributes to dignitary and other nonpecuniary harms. Statements and images presented in electronic media can give rise to defamation, invasion of privacy, trademark infringement, and false advertising claims. Accurate enough as descriptions of harm, these doctrines do not do an adequate job of repair. An injurious communication preserved by electronic means and distributed through social networking is more likely than its spoken or paper-written counterpart to spread (a phenomenon expressed in the metaphoric adjective “viral”), to reach people whose disesteem the victim cares about, and to retain power to inflict more harm after it has been adjudicated as unlawful. Injuries in the virtual realm call for remedies that recognize how information travels through — and lingers inside — electronic media. After summarizing how current remedies for virtual injuries fail to effect repair, this Article proposes a court-annexed alternative dispute resolution scheme.

 

- SBS

Agricultural Torts

The Center for Agricultural Law and Taxation at Iowa State is offering a webinar on Monday April 16:

On Monday April 16 from noon to 1 p.m. CST, CALT's Staff Attorney, Erika Eckley, will be conducting a webinar on the important topic of agricultural torts.  Lawyers can obtain 1 hour of CLE for joining in on the webinar.  But, it's not just for lawyers.  If you are an agricultural producer, operate an agribusiness, or are a rural landowner, you will benefit greatly from the 1-hour session.  It's a cost-effective way to learn how the law handles various liability situations, and that knowledge could end up saving you a great deal of dollars and grief in the future. 

Among the topics that Erika will cover include key state and national developments involving topics such as premises liability, nuisance, employer liability, recreational use, and legislative developments of importance to agricultural clients.  Erika will provide a basic primer on the development of an agricultural tort case, including the preservation and development of requisite evidence and proof of damages.

Don't miss this jam-packed session.  You can register for the webinar here:  http://www.calt.iastate.edu/

--CJR

AALS Mid-Year Meeting: Torts, Environment and Disaster

For those of you who still haven't firmed up your summer plans, consider traveling to Berkeley during June 8-12.  Torts is a focus of this year's AALS Mid-Year Meeting; it includes a "Workshop on Torts, Environment and Disaster."  The planning committee includes Laura Hines, Douglas Kysar, Bob Rabin, Tony Sebok and Lisa Grow Sun.  The speakers are an all-star cast.  The brochure is here.  Still not convinced?

Why Torts Law Teachers Would Attend?

Tort scholarship and tort practice has been concerned with large-scale losses since the advent of the class action. Recent events, such as the attacks of 9/11 and the BP oil spill, have illustrated that the tools of aggregate litigation may not be enough to handle the job of ascertaining both responsibility and compensation after a disaster. The Torts and Compensation Law Section will take advantage of its joint meeting with the Environmental Law Section to provide a fresh look at the special problem that disasters pose for tort law in the 21st Century.

The topics covered by the torts portion of the joint meeting will include whether tort law should be limited in times of disasters, the role (if any) of tort principles in the design of public compensation and private settlement funds, and the relationship between tort and insurance law in times of disaster. At the end of the program there will be a session on the incorporation of issues relating to disaster in the torts curriculum. The program will provide torts and insurance scholars of all levels of seniority with new insights into their own research and teaching.

--CJR

NFL Concussion Website

A 3L at UMKC, Paul Anderson, is running a website devoted to concussion-related suits against the NFL and helmet manufacturers.  Entitled NFL Concussion Litigation, it can be accessed here.

Thanks to Alex Long for the tip.

--CJR

How Do You Use the BP Gulf Oil Spill In Your Course?

Mike Rustad asks. Mike is speaking on the topic of "How To Teach Disaster As Part of a Torts Curriculum" at the AALS Workshop on Torts, Environment and Disaster from June 8-10, 2012, in Berkley.

Mike would appreciate your input:

In preparation for my talk, I am doing an informal study of how torts teachers use the BP Disaster (or other disasters) in their basic courts course (to illustrate topics such as the economic loss rule, legal causation, etc.), or in advanced torts or products liability classes. I am wondering how torts (and other subjects, too) have incorporated the BP oil spill into their classes. You can reply to me off-line at mrustad [at] suffolk.edu or perhaps we can start a discussion on-line as well. George Conk (Fordham) uses the BP oil spill in his Business Torts class to teach topics such as the economic loss rule, limited duty, and the role of insurance. He has posted a number of BP documents of interest to torts teachers at http://tortstoday.blogspot.com/p/bp-deepwater-horizon-spill.html I would be interested to hear how others use the BP oil spill, Katrina, or other disasters in their torts courses.

- SBS

More on NH Early Offer Bill

Back in March, Chris reported on the New Hampshire "early offer" bill that is pending in the state Senate.   As the Senate takes up consideration of the bill, it continues to receive media coverage.   SeaCoast Online has a detailed report in today's paper.

- SBS

VA Tech Asks Court to Cap Damages Via VTCA in Shooting Case

The families of two victims of the April 2007 shooting at Virginia Tech won an $8M award last month.  However, that award will be reduced to $100,000 per family pursuant to the Virginia Tort Claims Act.  Many states have tort claims acts which took the place of full sovereign immunity; they allow tort claims, but with capped damages and sometimes at a higher standard, such as gross negligence.  Reuters has the story.

--CJR

Eisenberg on the Empirical Effects of Tort Reform

Theodore Eisenberg (Cornell) has posted to SSRN The Empirical Effects of Tort Reform.  The abstract provides:

Tort reforms enacted in response to asserted crises date back to the 1970s and have emphasized the highly visible areas of punitive damages, medical malpractice, and products liability. Little evidence exists that reform of punitive damages affected the ratio between punitive and compensatory damages. This is consistent with the absence of evidence that punitive damages were ever out of control and in need of reform. Evidence of the effect of tort reform in the medical malpractice field is mixed. Caps on non-economic damages have reduced costs, thereby likely decreasing pressure on hospitals to improve care. Consistent evidence of effects on physician behavior and physician supply has not emerged. Tort reform has rarely sought to address the well-established problem of widespread harm caused by poor quality care. Products liability plaintiffs have had decreasing success over time. While one cannot rule out specific statutory reforms as achieving more favorable results for defendants, the national scope of plaintiffs’ declining success supports an explanation based on the social construction of knowledge by well-funded industry groups.

--CJR