TortsProf Blog

Robinette on William Prosser's Letters

I have posted to SSRN The Prosser Letters: 1919-1948.  The abstract provides:

William Prosser was one of the most accomplished and influential scholars of the twentieth century.  He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress.  In spite of his numerous achievements, there is no full-length biography of Prosser.  A major reason no one has written such a volume is the lack of Prosser’s papers.  Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963.  Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.

Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area.  The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948.  They provide a first-hand account from Prosser during crucial periods of his life.

This essay is based on a review of those letters.  It accomplishes three main things.  First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School.  Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy.  Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.

McClurg on the Second Amendment and Negligence

Andrew McClurg (Memphis) has posted to SSRN The Second Amendment Right to Be Negligent. The abstract provides:

Only two constitutional rights — the First and Second Amendments — have the capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences.  In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech.  This Article asserts that through both common and statutory law the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent. 

Explaining that it is a microcosm of a much larger issue, the Article focuses on one area: allowing access to guns by criminals through theft.  Hundreds of thousands of guns are stolen each year from individuals and commercial sellers.  By definition, they all go directly to criminals.  A substantial percentage of guns used in crime were previously stolen.  Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm.  This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised.

On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has — in the name of the Second Amendment — given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act.  The Act immunizes manufacturers and sellers of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft.

The Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs.

(Via Solum/LTB)

FL: New Model Jury Instructions for Products Liability

Last week, Florida adopted new model jury instructions for products cases.  On design defects, there is a split in Florida circuits between the consumer expectations and risk-utility tests; the instructions do not resolve the split.  Newsome Melton's website has more details here.

PA: Justices Reject Complete Ban of Informed Consent Evidence in Traditional Med Mal Cases

Back in November, I reported that the Pennsylvania Supreme Court was deciding whether to become the eighth state to completely ban informed consent evidence from a traditional med mal trial.  The plaintiff's lawyer argued that the informed consent could be used in a prejudicial way to insinuate that consent to the procedure amounted to consent to risks of negligence.  The court declined to adopt a bright-line rule excluding informed consent evidence and overruled a contrary Superior Court ruling.  The court, however, through Chief Justice Saylor, emphasized that informed consent and traditional med mal cases are very different:

The fact that a patient may have agreed to a procedure knowing its risks does not speak to whether the doctor fell below the standard of care in performing that procedure, Saylor said.

"Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care," Saylor said. "The patient's actual, affirmative consent, therefore, is irrelevant to the question of negligence."

So, like with Brady's complaint, when a malpractice complaint only asserts negligence, and not a lack of informed consent, evidence of informed consent should be excluded, Saylor said.

Saylor noted that a jury could be confused by informed consent and conclude the plaintiff consented to the injury.

The court thus held that evidence of informed consent is "generally irrelevant to a cause of action sounding in medical negligence."

The court was unwilling to take the next step and hold evidence of informed consent is never admissible in a traditional med mal case.  The Legal Intelligencer has the story.

AALS Torts Section: Request for News and Prosser Award Nominations

Dear Colleagues,
 
Greetings!  In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
 
1. Torts and Compensation Section Newsletter
 
As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at [email protected]. The deadline for inclusion is August 17, 2015. 
 
2.  2016 William L. Prosser Award
 
This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs.  Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
 
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015.   Email submissions to [email protected] are preferred.   If you would rather mail hard copies of nomination materials, please mail to:  Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.

Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach.  In the meantime, feel free to contact me if you have any questions.

Thank you—

Chris 

CA: Failing to Pay Prevailing Wages May Be Intentional Interference with Prospective Economic Advantage

A California Court of Appeal has held that a second-place bidder on a public works contract may sue the first-place bidder for failure to pay prevailing wages pursuant to the business tort of intentional interference with prospective economic advantage.  Garret Murai at JD Supra has the details.

MD: Dram Shop Bills Stall in Legislature

Dram shop bills in both the House and Senate received unfavorable reports from legislative committees this month.  JD Supra has the story.

Engstrom on Exit and Adversarialism in Compensation Systems

Nora Engstrom (Stanford) has posted her contribution to the O'Connell tribute to SSRN.  Entitled Exit, Adversarialism, and the Stubborn Persistence of Tort the abstract provides:

Serious tort reformers have long tried to divert certain claims from the tort system into no-fault or “replacement” regimes where, it is said, compensation can be more easily, expeditiously, predictably, and simply delivered.  Yet while many continue to champion no-fault’s expansion, surprisingly few have stopped to ask how America’s various no-fault experiments, in place for over a century, have thus far fared.  Taking up that challenge, this Essay, written in memory of no-fault pioneer Jeffrey O’Connell, canvasses America’s four boldest experiments with no-fault legislation.  The investigation — of workers’ compensation, automobile no-fault, the Vaccine Injury Compensation Program, and birth injury funds in Florida and Virginia — reveals that all four of our most ambitious no-fault experiments have, in significant respects, failed.  Seepage from no-fault regimes and into the tort system has been a persistent problem.  Further, even when compensation has been provided within existing no-fault mechanisms, the mechanisms have become bogged down by adversarialism, marked by longer times to decision and increased combativeness, attorney involvement, and reliance on formal adjudicatory procedures.  Showing how and why no-fault has repeatedly fallen short, this Essay seeks to complicate conventional wisdom concerning no-fault’s ostensible advantages.  And, it seeks to honor O’Connell’s proud legacy, for only by identifying what’s gone wrong, might we start anew on a path toward the creation of better and more resilient reforms.

All of the papers in the JTL tribute are now available here.

Kritzer & Vidmar on Juror Hostility to Defendants in Legal Malpractice Cases

Herb Kritzer (Minnesota) and Neil Vidmar (Duke) have posted to SSRN Lawyers on Trial:  Juror Hostility to Defendants in Legal Malpractice Cases.  The abstract provides:

In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials.  Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios.

Design of Electronic Health Records and Med Mal

On March 6th, Sharon McQuown addressed the ABA's Health Law Section on emerging issues in health care law and discussed the impact of EHR (electronic health records) on med mal litigation.  Specifically, she discussed how the design of EHR could have helped avoid the misdiagnosis of Ebola in a Texas hospital.  Shortly after the patient died, the hospital instituted EHR changes, including:   

• Adding a new tool in the EHR requiring a "hard stop confirmation" by the physician that he/she had been told that the patient had recently been to a country of concern
• Creating a more robust screen that draws attention to travel with a red box on top and specific identification of countries traveled
• Adding a banner alert screen if a patient is flagged for infectious disease with an alert of steps to be immediately taken
• Changing the discharge process so that discharge papers could no longer be printed early or if anything was unresolved in the document.

Fierce EMR has the story.

Ausness on the Right to Manufacture Unsafe Products

Richard Ausness (Kentucky) has posted to SSRN 'Danger is My Business':  The Right to Manufacture Unsafe Products.  The abstract provides:

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products liability. Other doctrines, such as the regulatory compliance defense and the contract specification defense, are aspects of the broader law of torts. Finally, a few of these doctrines, such as federal preemption and the government contractor defense, are rooted in principles of federal supremacy.

Wells on Constitutional Remedies

Mike Wells (Georgia) has posted to SSRN Constitutional Remedies:  Reconciling Official Immunity with the Vindication of Rights.  The abstract provides:

A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, or fired people on account of protected speech, or deprived them of liberty or property without due process of law, or discriminated against them in violation of equal protection. Because these backward-looking suits bear some resemblance to ordinary tort law, the doctrine is often called “constitutional tort.”

This Article examines a well-settled and routine — but destructive and quite unnecessary — consequence of the interplay between the liability rule and the official immunity doctrine. Consider two plaintiffs, Alice and Bob, each of whom sues for damages under § 1983. Suppose that both plaintiffs lose, but for different reasons. Alice establishes a violation of her constitutional rights, but fails because the defendant successfully asserts official immunity. Bob cannot show that his rights were violated in the first place. Despite the difference between their cases, current Supreme Court doctrine directs that Alice and Bob be treated the same. Both go away empty-handed. Under the Court’s approach, the competing goals behind liability and immunity are balanced in the following way: On the one hand, the aim of constitutional tort law is to compensate the plaintiff and to deter violations of rights. But on the other side of the balance, official immunity carries enough weight to override the compensation and deterrence goals. Thus, the official’s successful immunity defense carries the same force as a successful defense on the merits. Both result in total victory for the defense.

In this Article, I argue for a different conception of constitutional tort law, in which it is recognized that Alice’s case differs fundamentally from Bob’s. The point is not to question official immunity, a doctrine that has broad support from the Supreme Court. My project is to reconcile official immunity with Alice’s legitimate claim for a remedy.

MO: Med Mal Caps Pass Senate

On Thursday, I reported the Missouri Senate had given preliminary approval to med mal caps.  Here is an update:

The Senate voted 28-2 on Thursday to approve a measure limiting awards for pain and suffering in most personal injury cases arising from botched medical procedures to $400,000.

In catastrophic injuries, the limit would be $700,000. The measure also raised the existing cap on wrongful death cases form $350,000 to $700,000.

The bill will have to be reconciled with the House bill, which is a single noneconomic damages cap of $350,000.  The Kansas City Star has the story. 

Read more here: http://www.kansascity.com/news/government-politics/article13996721.html#storylink=cpy

JOTWELL Torts: Engstrom on Zabinski & Black

At JOTWELL, Nora Engstrom (Stanford) reviews Zenon Zabinski and Bernard Black's The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform.

MO: Senate Gives Preliminary Approval to Med Mal Caps

Last week, I reported the Missouri House had given preliminary approval to a $350,000 noneconomic damages cap in med mal cases.  The Senate has now given preliminary approval to a med mal noneconomic damages cap, but the details are different:

In most cases, a cap of $400,000 would apply. In more serious "catastrophic" injuries specifically defined in the bill — including paralysis, brain injury or a loss of vision — the cap would be $700,000. The bill also raises an existing $350,000 cap on noneconomic damages in wrongful death cases to $700,000.

All three of these caps would increase each year by 1.7 percent under the bill.

AP has the story.

Grey on Emotional Harm

Betsy Grey (Arizona State) has posted to SSRN The Future of Emotional Harm.  The abstract provides:

Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims — like evidence of physical harm — should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims.

TN: Circuit Judge Holds Noneconomic Damages Cap Unconstitutional

A Tennessee circuit court judge ruled yesterday that the state's cap on noneconomic damages is unconstitutional, likely triggering review by the Tennessee Supreme Court.  Unlike caps in many states, this one is not limited to medical malpractice cases.  The Chattanooga Times Free Press has the story.

CA: Release of Liability for Negligence Upheld for Gym

In Grebing v. 24 Hour, a California  Court of Appeal upheld a release signed by a gym member for the ordinary negligence of the gym.  Moreover, the court reaffirmed that a company that predominantly provides services, rather than goods, cannot be held liable for products liability.  J.D. Supra has the story.

MO: House Gives Preliminary Approval to Med Mal Cap

The Missouri House provided initial passage of a bill to reinstate a $350,000 non-economic damages cap in medical malpractice cases.  One more vote is needed before the bill goes to the Senate.  The bill received 101 votes, not the 109 it would need to override a veto.  OzarksFirst.com has the story.

Rabin on O'Connell

Bob Rabin (Stanford) has posted to SSRN his contribution to the JTL's O'Connell tribute.  Entitled Jeffrey O'Connell and the Compensation Principle in Accident Law:  Institutional and Intellectual Perspectives, the abstract provides:

In this essay, I locate the principles that animated the career of Jeffrey O’Connell in a larger context of examining the role of compensation in accident law. I provide a short historical excursion to set the stage. Next, I discuss how O’Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective no-fault coverage for products and medical mishaps, which in turn was followed by his early offers proposal. Then, I briefly trace the legacy of O’Connell in the present era of mass tort and disaster relief claims. A final section offers a concluding note.