TortsProf Blog

Allen on the Right to Privacy Tort & Natural Law

Anita Allen (Penn) has posted to SSRN Natural Law, Slavery, and the Right to Privacy Tort.  The abstract provides:

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a city newspaper is like a slave in bondage?

I argue that the jurisprudence of Pavesich need not be troubling. Pavesich’s natural law argument was supplemented by several positive law arguments. The positive law arguments were a strong enough basis for finding a right to privacy in the common law, as indeed Samuel Warren and Louis Brandeis had previously argued. The observation that the Pavesich court’s natural law argument ran alongside positivistic arguments suggests that the arresting, high-toned natural law and slavery appeals in Pavesich are inessential rhetorical throwaways. But I maintain that the natural law argument and slavery analogy features of Judge Andrew Jackson Cobb’s opinion extolling the “liberty of privacy” are (1) of critical importance to a full contextual understanding of the decision and (2) illuminate the contemporary case for recognizing invasions of privacy as civil injuries to freedom and self-determination. One can poke holes in the logic of Thomas Aquinas and John Locke as scholars have done for centuries. But one can as easily choose to celebrate the spirit of the natural law tradition. The natural law tradition represents efforts rhetorically, rationally, and intuitively to derive principles of justice and goodness from basic facts about human characteristics, needs, and desires, where otherwise binding sovereign law may fall short.

(Via Solum/LTB)

--CJR

Grady on Causation and Foreseeability

Mark Grady (UCLA) has posted to SSRN Causation and Foreseeability.  The abstract provides:

This paper critiques the theory of causation offered by Steven Shavell and proposes a new theory that more successfully predicts the results of proximate cause cases. Two doctrines of proximate cause exist: “direct consequences” and “reasonable foresight.” We can explain case law best if we assume that both doctrines must be satisfied in order for negligence liability to exist. Thus, the two doctrines do not represent alternative conceptions of proximate cause as some analysts have proposed. Proximate cause limitations are prominent when a party has inadvertently, as opposed to deliberately, omitted a reasonable precaution. Actors cannot efficiently reduce their inadvertent lapses to zero. In situations in which the defendant’s conduct has been “possibly efficient,” causation doctrines truncate liability. This truncation has the effect of preserving efficient activity levels and preventing actors from substituting inefficiently durable precaution for nondurable precaution.

--CJR

The Effect of Work Ethic on Workers' Comp and SS Disability Cases

For those of you who subscribe to The Legal Intelligencer, Allison Eberle-Lindemuth (Pond Lehocky Stern Giordano; Widener Law '11) has an article exploring the effect of work ethic on workers' comp and SS disability cases here.

--CJR

Pfizer Seeks Rehearing in Generic Liability Case

Forbes reports that Pfizer is asking the Alabama Supreme Court to reconsider its decision holding Pfizer liable for failing to warn a consumer who took a generic version of the drug Reglan.  The article points out the regulation, not litigation, may answer this one:

Meanwhile, though, the issue may be decided by the FDA. The agency recently disclosed plans to revise its regulations so that generic drugmakers can update product labeling and warn patients about risks associated with their drugs. If the FDA were to make such a change, generic drugmakers could be sued in state courts – if they become aware of evidence of serious side effects, but do not take action to update the product labeling (back story). 

- SBS

And the Carnival Cruise ship law suits begin....

The Associated Press has the story.

- SBS

AR: Tort Reform Via Constitutional Amendment?

House State Agencies and Governmental Affairs Chairwoman Andrea Lea says that consensus is forming for a proposed constitutional amendment on tort reform.  The Arkansas Supreme Court recently struck down several provisions in a decade-old tort reform law.  The proposed constitutional amendment would allow voters to replace those provisions.  The precise content of the potential amendment is not yet available.  The City Wire has details and a link to a podcast in which Lea discusses the issue.

--CJR

Can Google Be Liable for Defamatory Comments Made on A Blog Which it Hosted?

The answer is maybe.  Neil Foster (Newcastle) sends word of an interesting English Court of Appeals case:  Tamiz v. Google Inc.   The court found that, in some circumstances, Google could be liable for defamatory comments made on a blog hosted by Google:  "Thus, if Google Inc allows defamatory material to remain on a Blogger blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material."

- SBS

Baker & Swedloff on Regulation by Liability Insurance

Tom Baker (Penn) and Rick Swedloff (Rutgers-Camden) have posted to SSRN Regulation by Liability Insurance:  From Auto to Lawyers Professional Liability.  The abstract provides:

Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with public regulators. We describe these activities in general terms and then draw upon prior literature to explore them in the context of five areas of liability and corresponding insurance: shareholder liability, auto liability, gun liability, medical professional liability, and lawyers’ professional liability. The goal is to develop a conceptual framework to guide qualitative research on liability insurance as governance. 

--CJR 

Steroid Meningitis MDL Sent to Massachusetts

Claims regarding the meningitis outbreak tied to injectable steroids has been consolidated in a MDL before Judge F. Dennis Saylor of the District of Massachusetts.  The National Law Journal has the full story (behind a free registration wall).

Thanks to Lisa Smith-Butler for the alert. 

- SBS

Torts Professor Named to Queen's Bench in Alberta

Professor Russ Brown of the University of Alberta has been appointed as a Justice to the Alberta Court of Queen's Bench.  Brown taught Torts, Civil Procedure, Property and Wills.  His research focused within tort law on economic loss and causation. 

- SBS

Perspectives on Mass Tort Litigation at Widener

On April 16, 2013, Widener's Harrisburg, PA Campus will host Perspectives on Mass Tort Litigation.  The brochure (pdf) is here:  Download Mass Tort Symp bro 2013.  Please make plans to join us to discuss mass torts with a Pennsylvania flavor.  The schedule is as follows:

Introduction -- Dean Linda Ammons (9:00 to 9:15 a.m.)

 Panel 1 – Mass Tort Theory (9:15 to 10:30 a.m.)

• Moderator – Professor Christopher Robinette (Widener University School of Law)
• Professor Michael Green (Wake Forest School of Law)
• Professor Deborah Hensler (Stanford Law School)
• Professor Linda Mullenix (University of Texas School of Law)
• Professor Aaron Twerski (Brooklyn Law School)

Panel 2 – Emerging Issues in Mass Tort Practice (10:30 to 11:45 a.m.)

• Moderator – Professor Mary Kate Kearney (Widener University School of Law)
• Hon. Thurbert Baker (McKenna Long & Aldridge LLP; Atlanta, GA)
• John Beisner (Skadden Arps; Washington, DC)
• Tobias Millrood (Pogust Braslow & Millrood; Philadelphia, PA)
• Victor Schwartz (Shook, Hardy & Bacon; Washington, DC)

Lunch & DistinguishedAddress – (12:00 to 1:15 p.m.)

Introduction by Professor Christopher Robinette (Widener University School of Law)

Hon. Eduardo Robreno (E.D. Pa.) Federal Asbestos Litigation:  Black Hole or New Paradigm?

Panel 3 – Keystone State Civil Justice Issues (1:30 to 2:45 p.m.)

• Moderator –  Amaris Elliott-Engel (Legal Intelligencer)
• Nicholas Vari (K&L Gates; Pittsburgh, PA)
• Nancy Winkler (Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.; Philadelphia, PA)
• Mark Behrens (Shook, Hardy & Bacon; Washington, DC)
• Scott Cooper (Schmidt Kramer; Harrisburg, PA) 

Panel 4 – Asbestos-Related Bankruptcy Issues (3:00 to 4:00 p.m.)

• Moderator –  Professor Susan Raeker-Jordan (Widener University School of Law)
• Professor S. Todd Brown (SUNY Buffalo Law School)
• Bruce Mattock (Goldberg, Persky & White, P.C.; Pittsburgh, PA)
• William Shelley (Gordon & Rees, LLP; Philadelphia, PA) 

Panel 5 – Mass Torts Ethics (4:00 to 5:00 p.m.)

• Moderator – Professor Randy Lee (Widener University School of Law)
• Professor Sheila Scheuerman (Charleston School of Law)
• Professor Byron Stier (Southwestern Law School) (via Skype)

--CJR

JOTWELL Torts: Goldberg on Cardi, Penfield, & Yoon

Over at JOTWELL, John Goldberg likes lots the paper Does Tort Law Deter? by Jonathan Cardi, Randy Penfield, & Albert Yoon.  His full remarks are here.

--CJR

Mass Tort Filings Down 70% in Philly

The Pennsylvania Record reports that rules changes to the mass torts program at the Philadelphia Court of Common Pleas have resulted in a 70% drop in mass tort filings. 

- SBS

Georgia Proposes Tort Reform Bill

On Friday, Georgia state Senator Brandon Beach introduced a bill that would create a hearings-system to handle medical malpractice claims.    The proposed system would be similar to the worker's comp system:

[The bill] would create a system in which patients take complaints of doctor or hospital mistakes to a panel of physicians for hearings rather than filing lawsuits in court. If the panel concludes compensation is warranted, it pays out of a fund all providers pay into, like the no-fault system that covers on-the-job injuries.

The Augusta Chronicle has more.

- SBS

Behrens & Silverman on PA Venue Reform

Mark Behrens & Cary Silverman (Shook, Hardy & Bacon) have published Litigation Tourism in Pennsylvania:  Is Venue Reform Needed? in the Widener Law Journal.  Mark will argue for venue reform at an upcoming symposium here at Widener in Harrisburg.  Scott Cooper, the President of PA Justice, will argue the plaintiffs' perspective.  Stay tuned for more about the symposium. 

The article (pdf) is here:  Download DC-#447980-v1-Pennsylvania_venue_reform_article_pdf[1]  The conclusion:

Recent changes have made Philadelphia fairer for civil defendants in mass tort cases, but more needs to be done.  Pennsylvania should take the next step and adopt venue reform through legislation or court rule. As the Illinois Supreme Court recently observed: "Decent judicial administration cannot tolerate forum shopping as a persuasive or even legitimate reason for burdening communities with litigation that arose elsewhere and should, in all justice, be tried there."

One approach for Pennsylvania would be to extend the venue provision for medical liability actions so that all tort claims have to be brought in the county where the cause of action arose. That approach would achieve greater uniformity and predictability in the law. Alternatively, tort actions not involving medical liability could be brought in the county (1) where the plaintiff resides, (2) where all or a predominant part of the cause of action arose, or (3) where the defendant resides if the defendant is an individual, or where the defendant has its principal place of business if the defendant is a corporation or similar entity. If the action involves multiple corporate defendants, then venue should be limited to the county where the plaintiff resides or where all or a predominant part of the cause of action arose. In an action against a single small business defendant, venue could be limited to the county where all or a predominant part of the cause of action arose. Either approach would refocus Pennsylvania litigation on Pennsylvania citizens, help ensure that claims are heard in the county with the most logical connection to the case, and discourage joinder of local defendants simply for the purpose of having a case heard in a particular county. In the meantime, trial courts should do their part by granting defendants' forum non conveniens motions in cases that should be heard elsewhere.

--CJR 

Amicus Brief on Duty/Proximate Cause Issue

Mike Green and Jonathan Cardi (Wake Forest) have authored an amicus brief in a Missouri toxic tort case against Monsanto.  They invite any legal academic who is interested to join the brief.  From the e-mail:

In the case, the trial court dismissed the case on duty grounds (1) because plaintiffs could not specify the manner in which the PCBs (99% of which were made by Monsanto) had entered their bodies and (2) because the PCBs might have entered their bodies by disposal or misuse of the products. The brief argues that this is not a duty question but one of proximate cause.  Monsanto owed a duty to distribute dangerous chemicals reasonably, unless the court thinks of some extraordinary public policy reason not to impose such a duty.  The issues regarding manner of injury are properly handled by proximate cause.

A copy of the brief (pdf) is here:  Download Nishida Draft 1[1].  Parties interested in joining should e-mail Brent Rosenthal by February 7th at [email protected] 

 

Updated:  Apparently, the brief was authored by Brent Rosenthal.  Mike and Jonathan offered comments and support its thesis.

 

--CJR

Shepherd on Products Liability and Economic Activity

Joanna Shepherd (Emory) has published Products Liability and Economic Activity:  An Empirical Analysis of Tort Reform's Impact on Businesses, Employment, and Production (pdf available for download from Vanderbilt Law Review's website).  The abstract provides:

For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using the most comprehensive dataset to date on products liability reforms and economic activity, I find that many reforms that restrict the scope of products liability improve economic conditions. Specifically, these reforms increase the number of businesses, employment, and production in the industries that face most of the products liability claims: the manufacturing, retail, distribution, wholesale, and insurance industries. However, several other popular reforms have either a weak effect or no effect on economic activity. My results have important implications for recently enacted reforms and proposed legislation: while many of these reforms will improve economic conditions as lawmakers hope, others will have no effect. In the current economy, as business groups intensify their demands for tort reform, my findings provide critical evidence for courts and legislatures that are reassessing the appropriate scope of products liability.

UPDATED:  Max Kennerly critiques the article at Litigation and Trial. 

--CJR

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