TortsProf Blog

Bill Childs Update!

A shout out to our former co-blogger and blog founder, Bill Childs!   With great excitement, we received an email from our former co-blogger's new firm announcing his new position.  Bill is Senior Counsel at Bowman and Brooke in the firm's Austin, Texas office.  Bill is a part of the firm's pharma and medical device product liability litigation groups. 

Best wishes to Bill!

- SBS & CJR

 

Kaye's Products Textbook

Carolina Academic Press is publishing Products Liability Law: Cases, Commentary, and Conundra by Tim Kaye.  Here is the blurb:

Products liability law is often confusing because it is in a state of constant flux as it confronts a number of challenges. Some such challenges are well known, such as the battle over the comparative merits of the Second and Third Restatements of Torts. Other equally important challenges have, however, been overlooked by other texts, such as the growing use of bankruptcy protection laws to limit the consequences of supplying defective products (as in the recent bailout-supported cases of General Motors and Chrysler), and this book sets out to rectify such omissions.

While other books leave the reader to sink or swim in a swamp of apparently contradictory doctrine, Products Liability Law lays out from the beginning the five elements common to all products liability claims. It then builds on this foundation by tackling each new area of the law in a lucid and reader-friendly manner, while explaining how each doctrine relates to the politico-economic and historical context in which the law operates.

Supplementing the text with numerous original flowcharts, tables, and other diagrams—as well as asking thoughtful questions along the way—this book charts a careful and comprehensible course through the often tempestuous battleground of products liability law.

--CJR

IL: Railroad Had No Duty to Child Trespasser

Last week, the Supreme Court of Illinois handed down Choate v.  Indiana Harbor Belt RR Co., in which the company was held to have no duty to a 12-year-old boy who was trespassing on the railroad's right-of-way when he was injured.  Mark Weber, who was kind enough to send me the case, summarized the takeaway point.  The case does not make new law, but it demonstrates the trend toward narrower liability, especially for older children engaged in clearly dangerous acts (attempting to jump onto a train). 

The opinion is here.

--CJR

 

"Philly Regrets Flood of Cases"

The Wall Street Journal reports that mass tort filings in the Philadelphia Court of Common Pleas have "skyrocketed from 550 in 2008 to nearly 2,700 last year. The surge left an already busy court system buried in lawsuits and scrambling to repair the damage."    The article reports:

Also contributing to the surge of cases: the success of the Complex Litigation Center, a specialized Philadelphia court established in 1992 largely to handle the growing asbestos and pharmaceutical docket. The center adopted techniques that were designed to move cases through quickly, such as setting early trial dates, holding frequent meetings among the lawyers, and consolidating similar cases.

The Complex Litigation Center drew more mass-tort cases to Philadelphia. But until recently, it was largely able to manage its docket. Since 2008, the backlog of asbestos and pharmaceutical cases has shot up from about 2,600 to more than 6,100 through last month. Last year, 88% of the pharmaceutical cases were filed by out-of-state plaintiffs, according to the court.

The mess is now largely Judge Herron's to deal with. Since taking over as the administrative judge late last year, he has put into place several measures designed to reverse the trend—and to send a message to out-of-state lawyers to take their lawsuits to other courts. "Go elsewhere," he says, when asked to describe the message he is hoping to send to out-of-state lawyers. "There are a lot of really wonderful courts in the U.S., and you should make broader use of them."

- SBS

 

Colorado Movie Shootings Lawsuits Begin

Three victims of the Colorado shootings last summer during the premier of "Dark Knight" have filed suit in federal district court against the theater owner.  The suit alleges that the company was negligent in providing security at the theater.  CNN has the story.

- SBS

Tort Law in Recent State of the Union Addresses

Thanks to comments from Tony Francis and TPM, I know that George W. Bush discussed medical liability reform in his 2005 State of the Union address.  Also, in 2011, Barack Obama called for medical liability reform to cut down on frivolous lawsuits and save the government money.  It makes sense that tort law and reform would appear more in SoU addresses, which are policy-oriented, than in inaugural addresses, which focus on very broad principles.

--CJR

Tort Law in William Howard Taft's Inaugural Address

Yesterday I asked which inaugural address contained a direct discussion of tort law.  The answer is William Howard Taft's, delivered on March 4, 1909.  Taft discussed the Federal Employers Liability Act (FELA) toward the end of his address:

There is one other matter to which I shall refer. It was made the subject of great controversy during the election and calls for at least a passing reference now. My distinguished predecessor has given much attention to the cause of labor, with whose struggle for better things he has shown the sincerest sympathy. At his instance Congress has passed the bill fixing the liability of interstate carriers to their employees for injury sustained in the course of employment, abolishing the rule of fellow-servant and the common-law rule as to contributory negligence, and substituting therefor the so-called rule of "comparative negligence."

Only a few months earlier,Theodore Roosevelt discussed tort law and workers' compensation in the State of the Union address (notice the early December date in 1908).  Here's a taste:

Our present system, or rather no system, works dreadful wrong, and is of benefit to only one class of people--the lawyers. When a workman is injured what he needs is not an expensive and doubtful lawsuit, but the certainty of relief through immediate administrative action. The number of accidents which result in the death or crippling of wageworkers, in the Union at large, is simply appalling; in a very few years it runs up a total far in excess of the aggregate of the dead and wounded in any modern war. No academic theory about "freedom of contract" or "constitutional liberty to contract" should be permitted to interfere with this and similar        movements. Progress in civilization has everywhere meant a limitation and regulation of contract.

Does anyone know of other State of the Union addresses that included tort law?  I seem to recall George W. Bush referring to it. 

--CJR

 

Tort Law in Inaugural Addresses

Today I'm channeling Al Brophy in both form (trivia question) and content (history).  I just finished reading The Inaugural Addresses of the Presidents, edited by John Gabriel Hunt.  Here's the question:  In which inaugural address is tort law discussed directly?

--CJR

Central States Law Schools Association Conference

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. 

To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at [email protected] by September 22, 2012. Any late submissions will be considered on a space available basis only.  

For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers.  To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at [email protected].

            In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools.  If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at [email protected].

     For more information about CSLSA, visit our website at http://cslsa.us/

 

- SBS

Shavell on Tort Law Versus Regulation

Steven Shavell (Harvard) has posted to SSRN A Fundamental Enforcement Cost Advantage of the Negligence Rule over Regulation.  The abstract provides:

Regulation and the negligence rule are both designed to obtain compliance with desired standards of behavior, but they differ in a primary respect: compliance with regulation is ordinarily assessed independently of the occurrence of harm, whereas compliance with the negligence rule is evaluated only if harm occurs. It is shown in a stylized model that because the use of the negligence rule is triggered by harm, the rule enjoys an intrinsic enforcement cost advantage over regulation. Moreover, this advantage suggests that the examination of behavior under the negligence rule should tend to be more detailed than under regulation (as it is).

(Via Solum/LTB)

--CJR

Solomon on Civil Juries

Jason Solomon (W&M) has posted to SSRN The Political Puzzle of the Civil Jury.  The abstract provides:

At the root of many contemporary debates over the civil justice or tort system — debates over punitive damages, preemption, and tort reform more broadly — are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury — in both the academic literature and the public domain — tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution.

In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution: (1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens.

I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research.

--CJR

"Making the Most of Graphics for Trial"

An article by trial lawyer Melvin Dubinsky published in "The Practical Lawyer" may be of interest to torts-practitioners.  The article, Making the Most of Graphics for Trial, provides tips for using graphics in various tort cases such as car accident, and property liability cases, as well as illustrating damages through PowerPoint slides.

- SBS

2012 Lawsuit Climate Report

The Chamber's Institute for Legal Reform has released the 2012 Lawsuit Climate Report.  The report surveys in-house general counsel, and senior attorneys at companies with at least $100 million in annual revenues about their perceptions of the states' tort systems.  According to the report, "[t]he worst jurisdiction was Chicago/Cook County, Illinois (17%), followed by Los Angeles, California (16%), the state of California in general (9%), San Francisco, California (9%), and Philadelphia, Pennsylvania (8%)."

A pdf of the report is also available.

- SBS

 

 

Wriggins on the Compulsory Auto Insurance/Individual Mandate Analogy

Jenny Wriggins (Maine) has a short piece on the analogy between compulsory auto insurance and the individual mandate in the Affordable Care Act at the Scholars Strategy Network.

--CJR

VA: Facebook "Likes" Admissible, But Defamation Punies Award Cut

In a federal case in Virginia, the number of"likes" an allegedly defamatory Facebook page received was admissible, but a punitive damages award was reduced.  Peter Vieth of Virginia Lawyers Weekly has the story:

A federal judge says a dog trainer who claimed he was defamed by online accusations of animal abuse was entitled to tell a jury how many people “liked” the offending Facebook page, a federal judge has ruled.

Nevertheless, U.S. District Judge James Cacheris said the jury’s “grossly excessive” $60,000 punitive damages verdict in favor of the dog trainer should be cut by three quarters. Cacheris says the defendant can either accept the reduction of punitives to $15,000 or take a new trial.

The full story is here.

--CJR

Fraud in Indiana State Fair Fund Claims

The Associated Press reports that a woman has pled guilty for submitting false claims to the state tort fund created to compenstate the victims of the Indiana State Fair stage collapse in 2011.   This example raises the interesting question about how to prevent fraudulent claims when administering a compensation fund.

- SBS

Graham at CoOp

Over at CoOp, TortsProf Kyle Graham (Santa Clara) is guest blogging this month.  Check him out.

--CJR

Goldberg is Appointed Eli Goldston Professor of Law at Harvard

Congratulations to TortsProf John Goldberg on his appointment as the Eli Goldston Professor of Law at Harvard Law School.  Harvard's website has the details.

--CJR