TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, October 31, 2013

Statistics on Projected Costs of Med Mal Claims in 2014

Courtesy of Becker's Hospital Review, the findings include:

  • For events occurring in 2014, the projected loss rate for hospital professional liability will be an estimated $2,940 per bed. The frequency of claims is projected to be 1.67 percent per occupied bed equivalent and the severity of each claim is projected to be $176,000.
  • For events occurring in 2014, the projected loss rate for physician professional liability is projected to be $6,030 for each class 1 physician, with a frequency of 2.97 percent per class 1 physician. The severity of these claims is expected to be $203,000.
  • The projected loss rate for hospital general liability is expected to be $119 per OBE. The average general liability claim is expected to be $36,000.
  • Obstetrics, the most costly specialty in terms of malpractice claims in 2013, is expected to again be one of the costliest in 2014. Projected loss rate for obstetrics claims in 2014 is expected to be $171 per birth.
  • Projected loss rates vary greatly across the country. Florida ($7,440) and Pennsylvania ($4,720) have projected loss rates significantly higher than states like Indiana ($800) and Minnesota ($810).


October 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 30, 2013

Sebok & Wendel on Tort Versus Contract in Litigation Investment Agreements

Tony Sebok (Cardozo) and Brad Wendel (Cornell) have posted to SSRN Duty in the Litigation Investment Agreement:  The Choice between Tort and Contract When the Deal Breaks DownThe abstract provides:

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well.  While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.

The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should inform the formation and enforcement of the litigation investment contract.  The risks are: (1) Information Asymmetry; (2) Shirking; (3) Control; and (4) Opportunities Forgone.  As we explain in the article, it is not obvious that careful contract drafting can do anything other than minimize these risks.  Since their elimination is impossible (or at least prohibitively costly), the question the article turns to is how should disputes over the realization of any of these risks be handled by the courts?

The article canvasses a range of legal responses, including tort, contract, and regulation, and focuses on the tort and contract regimes as resources for legal doctrine to provide guidance to lawyers and judges.  We review the history of tort liability in pure economic loss cases involving the performance of contracts, and focus in first and third party insurance “bad faith” doctrines as the most promising analog.  We conclude that, despite some superficial similarities, the relationship between a claim owner and an investor in a legal claim are sufficiently different from that of an insurer and an insured such that tort law should not be followed in the case of litigation finance disputes.

Finally, we review the possibility of using contract law to resolve disputes between funders and claim owners.  The key challenge to anyone who defends the adequacy of contract law is to properly define the nature of the contract, since different kinds of contracts yield different obligations and different remedies.  We argue that litigation investment contracts are ‘relational contracts’ since they possess certain features that are a hallmark of this legal family, such as a concern to allow for the renegotiation of terms in order preserve the contract as an ongoing relationship.  With this in mind, we conclude by drawing upon the relational contract literature to sketch out broad contract law principles to apply to disputes over the performance of litigation investment contracts and the remedies that courts should order in the event that a contract breach is found.


October 30, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 29, 2013

Penn State Settles with Sandusky Victims

Yahoo Sports reports that Penn State has reached a settlement with twenty-six victims of the Sandusky sex abuse scandal:

Penn State announced Monday that it had settled a civil suit involving 26 victims from the Jerry Sandusky sex abuse scandal and will pay out nearly $60 million.....

"The aggregate dollar amount paid by the University for the 26 settled claims is $59.7 million and will be reflected in the University’s audited financial statements for the year ended June 30, 2013."

According to the university, it believes that its various liability insurance policies cover its settlements and defense of claims and those expenses not covered by insurance will be funded from interest revenues from the university to its own self-supporting units.



October 29, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Goldberg Reviews "Tort As A Substitute for Revenge"

Over at JOTWELL,  John Goldberg has a review of  "Tort as A Substitute for Revenge," by  Scott Hershovitz:

Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could be understood as law that provides an alternative to vengeance. In our disenchanted world, however, tort law must be seen as a mechanism by which the state pursues a public policy, such as compensation of injury victims.

In Tort as a Substitute for Revenge, Professor Scott Hershovitz invites us to ask whether Holmes got us off on the wrong foot. Indeed, he argues that tort law has an important connection to revenge and that, as such, it is to be credited with delivering a kind of justice.


October 28, 2013 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Friday, October 25, 2013

U.S. Chamber's Institute for Legal Reform on Litigation Trends

The U.S. Chamber of Commerce's Institute for Legal Reform has identified asbestos, class action, data privacy, and False Claims Act lawsuits as the leading lawsuit trends.  ILR's pamphlet  "The New Lawsuit Ecosystem" is here .


October 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 24, 2013

PA Adopts Med Mal Apology Immunity Legislation

Yesterday Gov. Tom Corbett signed legislation excluding from evidence apologies made by physicians and nursing home staff and administrators in med mal cases.  Statements accompanying the apology remain admissible.  The bill passed the state House 202-0 and the Senate 50-0.  PennLive has the story.


October 24, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Gifford & Robinette on Apportioning Liability in Maryland

Don Gifford (Maryland) and I have posted to SSRN Apportioning Liability in Maryland Tort Cases:  Time to End Contributory Negligence and Joint and Several Liability.  The abstract provides:

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and debate the respective advantages of its pure and modified forms. The Article then provides a comprehensive roadmap for the implementation of a comparative fault system and addresses the handling of multiple and absent tortfeasors and how the implementation of comparative fault should affect the law governing last clear chance, assumption of risk, and intentional wrongdoing. Because the authors’ approach is one of apportioning liability according to fault, they then recommend abrogating other Maryland doctrines that refuse to apportion liability, including joint and several liability and the state’s statute that declares evidence of seat belt nonuse inadmissible.


October 23, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Tort Law: Challenging Orthodoxy

From Hart Publishing comes a new torts book and a discount for our readers:

Tort Law: Challenging Orthodoxy 

Edited by Stephen GA Pitel, Jason W Neyers and Erika Chamberlain

In this book leading scholars from the United Kingdom, the United States and Australia challenge established common law rules and suggest new approaches to both old and emerging problems in tort law. Some of the chapters consider broad issues such as the importance of flexibility over certainty in tort law, connections between tort law and human flourishing and the indirect effects of changes in tort law. Other chapters engage more specific topics including the role of vindication in tort law, the relationship between criminal law and tort law, the use of epidemiological evidence in analysing causation, accessory liability in tort law, the role of malice in intentional torts and the role of statutes in tort law. They propose new approaches to contributory negligence, emotional distress, loss of a chance, damages for nuisance, the tort of conspiracy and vicarious liability.  

The chapters in this book were originally presented at the Sixth Biennial Conference on the Law of Obligations at Western University in London, Ontario in July 2012. They will be highly useful to lawyers, judges and scholars across the common law world.


October 2013    516pp   Hbk   9781849464710  RSP: £75 / €97.50 / US$150

20% DISCOUNT PRICE: £60 / €78 / US$120

Order Online US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US Website -


Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW Website  -

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530

Fax Number: 01865 510 710



October 22, 2013 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Torts and Civil Rights Law: Migration and Conflict

Sandra Sperino sends news of an interesting upcoming symposium at Ohio State:

On November 15, 2013, The Ohio State Law Journal will host a symposium titled “Torts and Civil Rights Law: Migration and Conflict.”

Increasingly, courts and commentators have labeled federal statutory anti-discrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection. Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

This symposium will explore the theoretical and doctrinal affinities and tensions between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium speakers include the following:

Martha Chamallas, The Ohio State University Moritz College of Law;

Charles A. Sullivan, Seton Hall University School of Law;

Sandra F. Sperino, University of Cincinnati College of Law;

Jonathan Cardi, Wake Forest University School of Law;

William R. Corbett, Louisiana State University Law Center;

Anthony Sebok, Yeshiva University Cardozo School of Law;

Catherine M. Sharkey, New York University School of Law;

Catherine E. Smith, University of Denver Sturm College of Law;

Angela Onwuachi-Willig, The University of Iowa College of Law;

Ifeoma Ajunwa, Research Fellow, Columbia Law School;

Maria Linda Ontiveros, University of San Francisco School of Law;

Laura Rothstein, University of Louisville Louis D. Brandeis School of Law;

Deborah L. Brake, University of Pittsburgh School of Law; and

L. Camille Hébert, The Ohio State University Moritz College of Law.


The symposium will be held at the Ohio State University Moritz College of Law.  For more information, please visit the symposium website at

The Supreme Court of Ohio Commission on Continuing Legal Education has approved this symposium for 5.50 total CLE hours of instruction.


 - SBS



October 21, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, October 17, 2013

Two by Sharkey

Cathy Sharkey (NYU) has posted two articles to SSRN.  First, The Future of Classwide Punitive Damages.  The abstract provides:

Conventional wisdom holds that the punitive damages class action is susceptible not only to doctrinal restraints imposed on class actions but also to constitutional due process limitations placed on punitive damages. Thus, it would seem that the prospects for punitive damages classes are even grimmer than for class actions generally.

This conventional picture misunderstands the role of punitive damages and, in particular, the relationship between class actions and punitive damages. It either ignores or underestimates the distinctly societal element of punitive damages, which makes them especially conducive to aggregate treatment. Furthermore, punitive damages classes offer a solution to the constitutional due process problem of juries awarding “classwide” damages in a single-plaintiff case.

Courts’ conceptualization of punitive damages as either individualistic or societal dictates how they decide the certification question. My survey of recent case law reveals that courts taking the plaintiff-focused individualistic view of punitive damages tend to deny class certification, while courts embracing the defendant-focused societal view are more likely to certify a punitive damages class, all else being equal. Therefore, the viability of the punitive damages class depends upon the persuasiveness of the societal conception of punitive damages.

Based on this empirical grounding, I discuss two possibilities for reform. First, state legislatures and courts could affirmatively define the collectivized, societal rationale for punitive damages. Such state legislative measures would likely withstand constitutional scrutiny under Philip Morris USA v. Williams, given the U.S. Supreme Court’s reaffirmation of the primacy of the state’s role in defining the legitimate purposes of punitive damages. Second, federal courts — in the absence of definitive guidance from authoritative sources on state substantive law — could consider the underlying societal rationale for punitive damages in the course of their certification decisions. To do so would not only be permitted, but indeed warranted, by the Rules Enabling Act.

Second is Against Categorical Preemption:  Vaccines and the Compensation Piece of the Preemption Puzzle.  The abstract provides:

In tort preemption cases, when federal law ousts conflicting state tort law, two fundamental functional premises should hold true: (1) the federal standard of care is more than a minimal standard and (2) the state standard of tort liability has a significant regulatory effect (if not the regulatory purpose) by trading off risks and benefits to inhibit or to encourage risk-taking conduct that interferes with, or substantially alters, a federal regulatory scheme. The regulatory role of state tort law is front and center in this paradigm of preemption. But what about the compensatory role of tort law? Should there, in fact, be a third premise that the federal regulatory regime must provide a substitute to injured victims for tort-based compensation? Or perhaps a weaker version, such that the absence of federally provided compensation is a thumb on the scale against preemption? Conversely, should the existence of such a federal compensation scheme weigh in favor of preemption?

The National Childhood Vaccine Injury Act (Vaccine Act) is a rare example whereby Congress provides for a federally administered compensation fund alongside its newly fashioned regulatory standards. The vaccine context thus provides an opportunity to explore the relationship between preemption and compensation.

In this Article, I provide some alternative frames for analysis. Frame One is conventional statutory interpretation focused on statutory text and legislative history.  Frame Two is consideration of the backdrop of tort lawsuits at the time when Congress acted and, relatedly, whether Congress provided a substitute administrative compensation scheme for tort law remedies. This frame is key to resolving disputes that amount to implied field preemption — namely, a categorical preemption claim that federal law ousts state law regardless of the precise risks considered by the underlying federal regulatory agency. My argument here is that the absence of compensation — particularly against a backdrop in which, prior to enactment of the federal scheme, tort law effectuated both regulatory and compensatory goals — renders the regulatory scheme incomplete. Conversely, the existence of a federal compensation scheme keeps categorical preemption claims on the table.

But the analysis should not end with Frame Two. Even if a categorical preemption argument fails because of the absence of a federal compensation fund, a narrower form of risk-based implied conflict preemption — in which the underlying regulatory agency has considered the risks and benefits at issue and resolved them in a way that is at odds or in tension with imposition of the asserted state-law duty — may be justified. And even where a categorical preemption argument is plausible, given the existence of a federal compensatory regime, there may nonetheless be a stronger underlying risk-based argument worth considering. Here is where Frame Three comes into play. Frame Three encapsulates the “agency reference model” I have developed in prior work, whose prime target is conflict preemption. The primary question in conflict preemption cases involving ambiguous congressional intent should be whether the federal agency considered the same risks and benefits that are the source of the competing state standard. Substantial deference should also be accorded to the underlying agency’s position on preemption, based on the thoroughness and consistency of its considered views.


October 17, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 16, 2013

SF Bay Area eDiscovery Forum

Brendan Kenny, who launched Twin Cities eDiscovery Forum a year ago, is back at it:

The SF Bay Area eDiscovery Forum is having its inaugural meeting on October 21st, 2013 from 8:00–9:00 a.m. at the offices of Hanson, Bridgett, LLP, 425 Market Street, 26th Floor, San Francisco. RSVP to Chelsea Doctors by at or by phone at 415-995-6465, by October 18, 2013.  

The first meeting will discuss e-mediation.

And here is a link to the invitation:


October 16, 2013 in Web/Tech | Permalink | Comments (1) | TrackBack (0)

Monday, October 14, 2013

Law Deans on Legal Education

My former Dean Richard Gershon is one of the contributing editors to a new member of the Law Professors Blog Network:  Law Deans on Legal Education.   From the inaugural post:

[This is a] new blog devoted to legal education from the perspective of law deans. We hope this blog will provide a place where you will find information, opinions, and thoughts about a range of topics and issues related to legal education. 

The editors of this blog are Dean Richard Gershon of the University of Mississippi School of Law, Dean Paul McGreal of the University of Dayton School of Law  and Dean Cynthia Fountaine of the Southern Illinois University School of Law.

Check it out!



October 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 10, 2013

Krauss on Litigation Financing and Ethics

Michael Krauss (George Mason) has posted to SSRN Alternate Dispute Financing and Legal Ethics:  Free the Lawyers!.  The abstract provides:

As is the case for many of our entitlements, our rights of action are protected by a less-than-full property rule. As a result, financing of litigation has been limited. The recent rise of alternate dispute financing has raised serious ethical problems. In this Article, I discuss those problems, dismiss some (but not all) of them, and suggest that pushing the protection of our entitlement to sue closer to a property rule might alleviate those problems that remain.


October 10, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 9, 2013

Keating Reviews "Lost Life and Life Projects"

At JOTWELL Torts, Greg Keating reviews "Lost Life and Life Projects" by Sean Hannon Williams:

Sean Hannon Williams’ Lost Life and Life Projects tackles “wrongful death damages from the perspective of individual justice accounts of tort law.” Wrongful death damages—or, more accurately, their inadequacy—have long troubled tort scholars. Lately, as Williams shows, their shortcomings have been a particular sore point for economically oriented tort scholars.



October 9, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

Tide Pods and Children

Dan Monk at WCPO in Cincinnati has a story about Tide Pods.  Several companies, most notably Proctor & Gamble (maker of "Tide"), have made a single-load laundry package, designed to enhance the convenience of washing clothes.  Many of them are designed with colorful swirls.  Unfortunately, children seem to be attracted to the product and put it in their mouths.  There have been approximately 13,000 reports of such occurrences documented by poison control centers in the last 2 years.  The American Association of Poison Control Centers states there have been over 6,700 such poisoning cases involving children under 5 in the first 8 months of 2013.  P&G has been responsive by making the containers opaque and more difficult to open; additionally, they launched a public safety campaign.  

A Chicago grandmother, however, argues those precautions do not help prevent many accidents based on the use of this particular product.  Because of the product's convenience, many people take the package with them in their laundry baskets, allowing children access.  She started a petition asking P&G to individually wrap Tide Pods and change the warning label about what to do if a child does ingest a Pod.  She says she is not interested in suing, but only wants to enhance the safety of the product.  If someone were to sue, there is an obvious contributory/comparative negligence issue, and she acknowledges it.  She says she used to say it is the care giver's responsibility to keep the product away from children, but she was in the room when her grandson put the Pod in his mouth.  She states, "If you blink for a second, the baby can get it in their mouth."


October 8, 2013 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, October 7, 2013

High School Suit Against Football Helmet Maker

Parents of a high school football player have sued football helmet manufacturer Riddell Inc.. for traumatic brain injury that the player sustained during a game while wearing a Riddell helment.  KTVB (AP) has more.



October 7, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, October 4, 2013

Bernabe on Invasion of Privacy

Alberto Bernabe (The John Marshall Law School) has posted to SSRN Giving Credit Where Credit Is Due:  A Comment on the Theoretical and Historical Origin of the Tort Remedy for Invasion of Privacy.  The abstract provides:

In 1890 Samuel Warren and Louis Brandeis published The Right to Privacy, which is considered by many to be the most influential law review article in the history of American tort law. Years later, in another famous and influential law review article, William Prosser attempted to complete the work of Warren and Brandeis. His proposal for a new understanding of the right to privacy, however, contradicted Warren and Brandeis’ understanding of it and, in fact, altered the character of the concept.  Nevertheless, it was later adopted in the Restatement of the Law Second.  Thus the traditional view of the origin of the concept of a privacy tort is that it was created by Warren and Brandeis and refined by Prosser.  Although partially correct, this explanation tells only a small part of a more complex and interesting story.  A more careful reading of the story shows that the article by Warren and Brandeis has been given more credit than it deserves and that Prosser’s attempt to organize the notion of a privacy torts into a small number of categories was, at best, counterproductive.  The real origin of the concept of privacy as an interest that deserves protection in tort law was the common law of torts itself, best exemplified by a decision of the Michigan Supreme Court published nine years before Warren and Brandeis’ article.  The right to privacy was not born in a law review article.  It was born the day an uninvited stranger happened to be present when a woman was having a baby at home.  It is important to give credit where credit is due; not to Prosser, not to Warren & Brandeis but to Chief Justice Marston who, in DeMay v. Roberts, was the real precursor to what we now refer to as the right to privacy.


October 4, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 3, 2013

Geistfeld on Tort as Compensation

Mark Geistfeld (NYU) has posted to SSRN Compensation as a Tort Norm.  The abstract provides:

The possibility that tort law can be justified by an abstract norm of compensation has been summarily dismissed by tort scholars. A compensatory norm would seem to justify the award of compensatory damages in all cases of harm, a form of liability that is obviously at odds with the default rule of negligence liability. A rigorous specification of a compensatory tort right shows otherwise. The correlative compensatory duty can be justified by the principle of liberal egalitarianism for reasons illustrated by the conception of equality articulated by Ronald Dworkin. The compensatory dutyholder is not obligated to pay compensatory damages in all cases of harm, because the exercise of reasonable care distributes risk in a manner that satisfies the compensatory tort right. In addition to justifying the default rule of negligence liability, compensation is a defensible norm of corrective justice that can persuasively explain the other important doctrines of tort law, despite the limited availability of the compensatory damages remedy.


October 3, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 2, 2013

Preliminary Draft of R3: Intentional Torts to Persons

Professor Ellen Pryor (UNT/Dallas) and Professor Ken Simons (BU) are co-Reporters for the Restatement Third of Torts: Intentional Torts to Persons.  They have completed a Preliminary Draft addressing battery, assault, and transferred intent.  The Draft is currently under consideration by members of the American Law Institute.  As part of the review process, they invite torts professors to provide feedback on the draft.  They also suggest that you read the Reporter's Memorandum at ix-x, which highlights issues that are especially worthy of attention.

You should feel free to send comments directly to the Reporters, at these email addresses:
Or, if you prefer, you may post comments on this blog. Please note that the ALI has copyright in the draft; and that this is only a preliminary draft, not yet approved by the ALI, which is subject to further changes through the ALI process.


October 2, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 1, 2013

Ohio Tort Reform - 10 Years Later

WOSU, the public radio station in Columbus, Ohio, reports on the impact of Ohio's caps on non-economic damages passed 10 years ago.


October 1, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)