TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, November 30, 2012

"Tort Litigation and Juries: By the Numbers"

The Center for Justice and Democracy at New York Law School has published  "Tort Litigation and Juries: By the Numbers."   The briefing summarizes recent statistical analysis of tort filings, trials, and awards.

- SBS  

November 30, 2012 in Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 29, 2012

Federalism and Tort Reform

A number of authors have been engaging in a lively debate about congressional power to enact tort reform. Starting it off, Paul Clement authored Federalism, the Framers, and Federal Legal Reform - Setting the Record Straight, released by the Chamber of Commerce in October.  Essentially, Clement defends federal tort reform as permissibe under the Commerce Clause.  Last week, Rob Natelson of the Independence Institute offered a response: Did the Founders Constitution Permit Federal Tort Reform?   And now, Randy Barnett over at Volokh Conspiracy has weighed in.   




November 29, 2012 in Current Affairs, Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 27, 2012

Mullenix on the BP Compensation Fund

Linda Mullenix (Texas) has posted to SSRN Prometheus Unbound:  The Gulf Coast Claims Facility as a Means for Resolving Mass Tort Claims--A Fund Too Far.  The abstract provides:

In the well-known Greek myth, Prometheus stole fire from the Greek god Zeus and gave it to humanity. In return for this arrogance, Zeus had Prometheus chained to a rock in the Caucasus Mountains where Prometheus was punished by an eagle eating away at his liver, which regenerated every night. Because Prometheus was immortal, he was condemned to eternal torture by the voracious eagle‘s pecking. After 30 years of this punishment, however, Hercules appeared, killed the eagle, and liberated Prometheus from his unending torment. In return for freeing him, Prometheus rewarded Hercules with the secret to completing the 11th of his famous Herculean labors.

On April 20, 2010, an explosion on the Deepwater Horizon rig killed 11 workers and unleashed the worst oil spill in American history. Less than two months later, on June 16th, 2010, BP Oil ― after meeting with President Barack Obama ― agreed to set up a $20 billion fund to compensate victims of the disaster. Shortly thereafter, BP selected Kenneth Feinberg to oversee the compensation fund and claims process.


November 27, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

PA: New Ruling on Products Liability Affirmative Defense

On Monday, the Supreme Court of Pennsylvania ruled that, in order to avoid liability, a defendant raising a claim of highly reckless conduct must plead and prove such claim as an affirmative defense.  The case, Reott v. Asia Trend, is here.

Thanks to Scott Cooper for the tip.


November 27, 2012 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, November 22, 2012

Employers' Liability and Workers' Compensation

Ken Oliphant & Gerhard Wagner have published Employers' Liability and Workers' Compensation.  The abstract provides:

The European Centre of Tort and Insurance Law (ECTIL) with support by the Institute for European Tort Law embarked already in 2009 on a Comparative Project on Employers' Liability and Workers' Compensation. The study - conducted in English and led by Ken Oliphant (Institute for European Tort Law, Vienna) and Gerhard Wagner (University of Bonn) - will consist of reports from Austria, Australia, Denmark, France, Germany, Italy, Japan, the Netherlands, Poland, Rumania, the United States of America and the United Kingdom. With regard to content the study will focus on the compensation of occupational diseases and accidents. Issues like discrimination, moral or sexual harassment and other damages claims of employees against their employer will be dealt with in the reports for countries where these issues are seen as a part of Employers' Liability (e.g. UK, USA), but not in detail. Major aspects of the reports will be a description of different existing compensation schemes, interactions between Employers' Liability and Workers' Compensation, a comparison of both systems and their respective efficiency.

The countries covered are: Australia (Mark Lunney), Austria (Ernst Karner/Felix Kernbichler), Denmark (Vibe Ulfbeck), England and Wales (Richard Lewis), France (Florence G'Sell/Isabelle Veillard), Germany (Raimund Waltermann), Italy (Alessandro P Scarso/Massimo Foglia), Japan (Keizo Yamamoto/Tomohiro Yoshimasa), the Netherlands (Siewert D Lindenbergh), Poland (Domenika Dörre-Nowak), Romania (Christian Alunaru/Lucian Bojin) and the United States of America (Michael D Green/Daniel S Murdock).
The book is completed by three concluding essays that address general themes:
Thomas Thiede, The European Coordination of Employers' Liability and Workers' Compensation
Ken Oliphant, The Changing Landscape of Work Injury Claims: Challenges for Employers' Liability and Workers' Compensation
Gerhard Wagner, New Perspectives on Employers' Liability - Basic Policy Issues


November 22, 2012 in Books | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 20, 2012

Keating on Tort Theory

Greg Keating (USC) has posted to SSRN Is the Role of Tort to Repair Wrongful Losses?.  The abstract provides:

For more than a generation, corrective justice theories of tort have been the principal alternative to economic theories. Corrective justice conceptions claim (as Jules Coleman, a leading corrective justice theorist puts it) that “tort law is best explained by corrective justice” because “at its core tort law seeks to repair wrongful losses.” This thesis encapsulates a powerful critique of the economic theory of tort. That theory is committed to a relentlessly forward-looking conception of the institution. On the economic account, tort is a mechanism for inducing actors whose activities put others at risk of injury to minimize the combined costs of accidents and their prevention. It does so by placing responsibility for repairing past losses on those actors who are the “cheapest cost-avoiders.” The “cheapest cost-avoiders” are those who are in the best position to minimize the combined costs of accidents and their prevention. Because past costs can no longer be affected, this criterion looks forward and only forward. It therefore misconceives the point of tort adjudication. Tort adjudication looks backwards and assigns responsibility for repairing harm wrongly done. Tort adjudication holds tortfeasors liable to those they have wronged for the losses that they have wrongly inflicted because they are responsible for having wrongly inflicted those losses on those victims.

Corrective justice theory thus articulates a powerful critique of the economic theory of tort. That critique, however, spawns its own misconception of tort law. Corrective justice theory puts the cart before the horse and misconceives tort as an essentially remedial institution. Tort is a law of wrongs, not just a law of redress for wrongs. Logically and normatively, obligations of repair are dependent on primary obligations not to wrong others in the first instance. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary responsibilities. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Primary and remedial responsibilities form a unity in which primary responsibilities have priority. Corrective justice is thus an essential, but subordinate, aspect of tort. The heart of tort law is constituted by primary obligations to avoid committing various wrongs.


November 20, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 19, 2012

Culhane et al. on Informed Consent

John Culhane (Widener), King-Jean Wu (National Taiwan University), Oluyomi Faparusi (Widener), and Eric Juray (Widener) have posted to SSRN Toward a Mature Doctrine of Informed Consent:  Lessons from a Comparative Law Analysis.  The abstract provides:

Under the doctrine of informed consent, physicians owe patients a duty to disclose to them all material risks of a contemplated treatment or procedure. While the doctrine is generally well accepted in the United States and several other common law countries, it has had a rockier reception in other places. This inconsistency is on its face surprising, given that the doctrine stems from the principle of patient autonomy – a principle to which most countries supposedly subscribe. Unless the patient is in possession of sufficient information, that autonomy may be compromised. But the inconsistency is less puzzling when one considers the difficulty of applying the doctrine to the actual physician-patient relationship.

This article examines the doctrine in four countries that have had different responses to informed consent: the United States; Great Britain; Canada; and Taiwan. This comparison highlights the compromises that each of these jurisdictions has made to the foundational principles of informed consent, and then proposes a way forward by borrowing heavily from the Canadian model.


November 19, 2012 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, November 16, 2012

Hellerstein, Henderson, & Twerski on the 9/11 Responders' Litigation

Alvin Hellerstein (USDC, Southern District of New York), James Henderson (Cornell), and Aaron Twerski (Brooklyn) have posted to SSRN Managerial Judging:  The 9/11 Responders' Tort Litigation.  The abstract provides:

After the 9/11 attack on the World Trade Center approximately 60,000 responders came to ground zero to assist in some fashion. Over the years some 10,000 responders brought suit against the City of New York and its contractors under a variety of theories for injuries they suffered from exposure to the toxic environment at the World Trade Center site. This conglomeration of cases brought to Judge Alvin Hellerstein, sitting in the federal Southern District of New York, was the most complex mass tort case in the history of the United States. The responders alleged that they suffered over 300 different diseases arising from exposures at the site ranging from several days to ten months. The Court, with the aid of Special Masters, created a complex database that accounted for a host of variables and that categorized diseases utilizing objective criteria to determine their relative severity so that the Court and the parties could get an overview of the scope of the injuries actually suffered over time. The parties presented the Court with a settlement for all the cases slightly in excess of $600 million dollars. The federal government had set aside a fund of one billion dollars to compensate victims who had legitimate tort claims against the city. Although this case could not be certified as a class action Judge Hellerstein rejected the settlement as unfair. Ultimately the parties agreed to add $125 million in additional monies to the settlement and the Judge found the settlement to be reasonable. This article deals with the creative role of the judge in managing discovery and his authority to reject a settlement in a case that had many attributes of a class action but was not a true class action. The article argues that Judge Hellerstein’s assumption of responsibility for managing discovery and his rejection of the settlement was necessary and proper. It was the only way to bring about a settlement and assure that the plaintiffs would receive fair compensation.


November 16, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 15, 2012

Hurricane Sandy Power Outage Negligence Suits

Twenty angry customers of New Jersey Power & Light have sued the company for negligence, among other things, due to the power outage in the wake of hurricane Sandy.  One of the chief allegations is that the company is not keeping up with the infrastructure and outages are becoming more common and lasting longer.  A similar suit was filed against the Long Island Power Authority in New York. has the story.


November 15, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 13, 2012

Feinman on Insurance Claims Practices

Jay Feinman (Rutgers-Camden) has posted to SSRN The Law of Insurance Claims Practices:  Beyond Bad Faith.  The abstract provides:

This article provides a fresh perspective on the law of bad faith in first-party insurance cases. In these cases, the company is alleged to have failed to pay a valid claim submitted by the policyholder, delayed payment of a claim or forced litigation to obtain what the policyholder is owed. A basic premise of the article is that “bad faith” is an ill-advised term for this area. The primary focus in these cases should be whether the company has honored its obligation to observe fair claim practices. “Bad faith,” as that term is normally understood, plays a part, but it is a secondary part, prohibiting opportunism by the company. Therefore, this area should be understood simply as the law of claim practices.

The article first describes the development and present state of the law providing a cause of action for the failure to observe fair claim practices. That development rests on the obligation of good faith implied in every contract, including insurance contracts. It then explains more fully that obligation and how it relates to claim practices, and it draws the implications of that explanation to state and apply the appropriate rule for evaluating a company’s claim practices: The company may not act opportunistically, and it must promptly, fairly, and objectively process, investigate, evaluate, and resolve the claim. Finally, the article explains the damages that should be available to a policyholder for violation of this rule.

The analysis in the article provides a basis for reexamining the law of first-party claim practices generally. It has its greatest application, however, in two groups of jurisdictions which together comprise the large majority of American jurisdictions. One group does not recognize a cause of action for violation of claim practices standards, and the other permits an action only where the company not only lacked a reasonable basis for its action in delaying or denying a claim, but also knew or recklessly disregarded its lack of a reasonable basis. Both of these positions fail to apply properly the obligation of good faith in light of the relationship between an insurance company and its policyholder.


November 13, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Keating on The (Mis)Alignment Debate

Over at JOTWELL, Greg Keating has posted a review of Mistakes, Misunderstandings, and Misalignments, 121 Yale L.J. Online 541 (2012), by Jules Coleman.   From Keating's review:

Professor Coleman has now responded that Porat’s account of misalignment is unpersuasive because negligence law is not misaligned. It is aligned but in terms of its own intrinsic logic not in terms of efficiency. The sequence of elements in a negligence claim determines whether a putative wrongdoer in fact conducted themselves with sufficient regard for the interests of the party claiming wrongful harm at their hands. The elements are coherent on their own terms and that is all the coherence they need.

This is a rich, sophisticated debate which will repay close study by anyone interested in the nature of tort liability and the future of tort theory.



November 13, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2012

Opening: Director, DOJ Federal Tort Claims Act Section

The Director of the Federal Tort Claims Section is open.   Details on how to apply are here.


November 12, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, November 9, 2012

Virginia Expands Wrongful Discharge Tort

In a case involving alleged sexual harassment, the Fourth Circuit certified a question to the Virginia Supreme Court, which rephrased the question slightly:

“Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as in the capacity of a supervisor or manager?”

In a 4-3 decision, the court answered the question in the affirmative.

Legal Newsline has an extensive recap here.


November 9, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, November 8, 2012

Weinrib's New Book on Corrective Justice

Ernest Weinrib further develops his concept of corrective justice in a new Oxford University Press book entitled Corrective Justice.  The abstract provides:

Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers.

Ernest Weinrib made a seminal contribution to the understanding of private law with his first book, The Idea of Private Law. In it, he argued that there is a special morality intrinsic to private law: the morality of corrective justice. By understanding the nature of corrective justice we understand the purpose of private law - which is simply to be private law.

In this new book Weinrib takes up and develops his account of corrective justice, its nature, and its role in understanding the law. He begins by setting out the conceptual components of corrective justice, drawing a model of a moral relationship between two equals and the rights and duties that exist between them. He then explains the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract, and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor.

Combining legal and philosophical analysis, Corrective Justice integrates a concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Alongside the revised edition of The Idea of Private Law, it will be essential reading for all academics, lawyers, and students engaged in understanding the foundations of private law.


November 8, 2012 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 7, 2012

ALI to Draft Restatement of Intentional Torts

Ellen Pryor (SMU/UNT Dallas) and Ken Simons (Boston University) have been named as Reporters.


November 7, 2012 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 6, 2012

Book Reviews by Judge Posner (Not really)

This is not torts related.   But it will give you a smile.  My colleague Paul Lund sent me this page. I give you: "Excerpts from Some Other Highly Critical Book Reviews by Judge Richard Posner...OK, Not Really."

- SBS 

November 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

IL Supreme Court Recognizes Intrusion Upon Seclusion Tort

In Lawlor v. North American Corporation of Illinois, (pdf) Case No. 112530 (Oct. 18, 2012), the Illinois Supreme Court recognized the tort of intrusion upon seclusion.  As commentators have noted, this was not surprising as the Illinois appellate courts uniformly have recognized this tort, but the Illinois Supreme Court has now set out the elements of the tort.   Littler Mendelson has a briefing on the case.


November 5, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, November 1, 2012

A Tribute to Jeffrey O'Connell

UVa Law Dean Paul Mahoney has eloquently penned A Tribute to Jeffrey O'Connell, which is published in the latest issue of the Virginia Law Review.


November 1, 2012 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Med Mal Reform in Taiwan

The Taipei Times is running an article today about medical malpractice reform in Taiwan.  Here is a sample:

The Taiwan Health Reform Foundation (THRF) yesterday said there were four major problems that patients often meet in medical malpractice disputes, and urged that the mechanism for dealing with medical disputes be codified to solve the problems.

The four major problems are “difficult to obtain critical evidence, many traps within negotiations, no access to consultation and investigation and asymmetric professional information,” the foundation said, saying that the problems were revealed by patients or their family members through their complaints to the foundation over the past year.

Among other data provided in the article, a THRF survey found that many people only demand an apology and the truth, and up to 98 percent of respondents said what they needed most was professional consultation and investigation to clarify the problem.


November 1, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)