TortsProf Blog

Rustad's Work Featured in Column

Mike Rustad's tort scholarship is featured heavily in a column written by his son, James.  A singer/songwriter as well, James includes his song "The Great Inevitably Exploding Ford Pinto."

OT: Davidson Publishes "Virginia Dawning"

It's summer and literature week here at TortsProf.  Yesterday I posted about Martin Clark's "Jezebel Remedy," and today I'm pushing another novel from my home state of Virginia.  Charlottesville lawyer John Davidson has just published his debut novel, "Virginia Dawning."  Back in 2012, John won a short story contest judged by John Grisham.  "Virginia Dawning" is receiving strong early reviews; the blurb:

One spring morning in the gentle hills of Virginia, when Dr. Luke Andrews kisses his wife, Sarah, goodbye for the day and drives to his small-town medical practice, he unwittingly leads their young family into the hands of Hiram Legrand, a dangerous fugitive from the law.

Filled with shocking twists, Virginia Dawning is a fast-paced thriller that brings one family face-to-face with pure evil. Told in a rare dual first-person narrative by Luke and Sarah Andrews, a young couple, this suspenseful tale offers surprises at every turn while compelling readers to consider the true meaning of hope and love.

Order here.

OT: Martin Clark's "Jezebel Remedy" Available for Pre-Order

Virginia Circuit Judge Martin Clark is about to publish his fourth novel, "The Jezebel Remedy."  I reviewed Clark's third novel, "The Legal Limit," back in 2009.  I'm very excited about the next one, due out on June 9th.  From the blurb:

Lisa and Joe Stone, married for twenty years and partners in their small law firm in Henry County, Virginia, handle less-than-glamorous cases, whether domestic disputes, personal injury settlements, or never-ending complaints from their cantankerous client Lettie VanSandt (“eccentric” by some accounts, “certifiable” by others).  When Lettie dies in a freakish fire, the Stones think it’s certainly possible that she was cooking meth at her trailer. But details soon emerge that lead them to question how “accidental” her demise actually was, and settling her peculiar estate becomes endlessly complicated.

Before long, the Stones find themselves entangled in a corporate conspiracy that will require all their legal skills—not to mention some difficult ethical choices—for them to survive. Meanwhile, Lisa is desperately trying to shield Joe from a secret, dreadful error that she would give anything to erase, even as his career—and her own—hangs in the balance.  In The Jezebel Remedy, Clark gives us a stunning portrait of a marriage, an intricate tour of the legal system, and a relentlessly entertaining story that is full of inventions, shocks and understanding.

Order here.

FL: Med Mal Cap Not Retroactive

The Florida Supreme Court ruled last week that Florida's 2003 medical malpractice cap is not retroactive to damage done prior to the law's passage.  WCTV has details.

KS: Negligence Standard Reaffirmed for Escaped Livestock

Details at Iowa State's Center for Agricultural Law and Taxation.

Baker & Swedloff on Lawyers' Professional Liability

Tom Baker & Rick Swedloff have posted to SSRN Liability Insurer Data as a Window on Lawyers' Professional Liability.  The abstract provides:

Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker – this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013.  Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, a large percentage of claims (64-70%) involving de minimus expense (less than $1000) in the small firm market, and in the large firm market a declining rate of “real claims” per 1000 lawyers, a declining rate of real average gross loss per claim, and stable real premiums per lawyer since the early 1990s.  Because of data limitations, however, these results cannot be confidently generalized.  Further advances in the understanding of lawyers’ liability and insurance will require qualitative research.

Culhane on Amtrak Cap

Widener's John Culhane at Slate:  "A Cruel Cap."

Frats are "Major Liability" According to Two-Thirds of Risk Managers

Inside Higher Ed has details.

Thanks to David Raeker-Jordan for the tip.

LA: Migration of Chemicals from Spill Not a Continuing Tort for SOL Purposes

A Louisiana appellate court has held a 1983 chemical spill does not constitute a continuing tort that tolls the statute of limitations.  The court also held CERCLA does not preempt the state statute of limitations.  Ned v. Union Pac. Corp. is discussed at JD Supra.

Nondisclosure Agreements in Med Mal Settlements

William Sage is lead author on a study of nondisclosure agreements in med mal settlements.  Using the Texas closed-claim database, the authors determined nondisclosure clauses were included in 88.7% of settlements.  This is not surprising to me, but the authors also concluded the clauses were broader than necessary to protect the doctors and hospital, and even broader than needed to avoid attracting other claimants.  Monthly Prescribing Reference has a story, with links to the study.

Twerski & Henderson on Comment K

Aaron Twerski & James Henderson have posted to SSRN Drug Design Liability: Farewell to Comment K.  The abstract provides:

Half a century ago the reporter for the Second Restatement of Torts, William Prosser, drafted Comment k to § 402A, defining the liability of drug companies for defective prescription products.  Prosser’s attempt to shelter drugs from design defect liability has confused courts and commentators alike.  Courts at first interpreted Comment k to immunize drug manufactures from design-based liability; more recently, a growing number have begun to interpret the Comment to allow such actions.  However, there is wide disagreement regarding the conditions under which courts should permit drug design claims.  Courts have articulated no fewer than eight different tests, all relying on Comment k.  This article examines the historical origins of Comment k and explains why it has confused so many judges and academics.  The authors argue that the tests adopted by courts in reliance on Comment k are seriously flawed.  In its stead, the article advocates that a drug manufacturer should held liable for defective drug design only when the drug is not fit for use by any class of patients.  All other drug-related claims should be based on findings that the drug either contained a manufacturing defect or was marketed with inadequate warnings.

IL: Court to Decide Duty Question for 911 First Responders

Kirk Jenkins at JD Supra has analysis here.

PA: Med Mal Cases Decline Again

Pennsylvania med mal cases filed in 2014 have hit an all-time low since tracking began in 2000, and are down 46.5% from the base years of 2000-2002.  Only 1463 cases were filed across the Commonwealth last year.  In a separate category, of the 2014 verdicts in med mal cases, 81% were for the defense. 

Central Penn Business Journal has the story.

TX: No Design Defect in Case of Intentional Misuse

From Friday's Genie Industries v. Matak:

In this case, the users of an aerial lift supporting a worker 40' in the air attempted to move

the machine. Signs on the machine and instructions in the user manual warned of the obvious danger:

the machine would tip over and the worker would fall to the ground. And that is what happened. So

obvious was the danger that although over 100,000 lifts of the same general model have been sold

all over the world, the jury was provided with evidence of only three similar accidents involving

similar AWP lifts over the past decade—none of which involved the intentional destabilization

of a fully-extended 40' lift.  The lift cannot be said in any sense to be unreasonably dangerous.

 

Deborah LaFetra, of Pacific Legal Foundation, comments here.

MO: Governor Signs Med Mal Caps Bill

Missouri Governor Jay Nixon signed the med mal caps bill passed by the legislature (earlier coverage here):

The limits apply only to noneconomic damages, not medical costs or lost wages.

Most noneconomic damages would be capped at $400,000. For catastrophic cases, including paralysis or brain injury, the cap would be $700,000.

The bill also doubles the limit in wrongful death cases to $700,000.

WGEM.com has details.

JOTWELL Torts: Zipursky on Oberdiek on Contractualism and Tort Law

At JOTWELL, Ben Zipursky has posted a review of John Oberdiek's Structure and Justification in Contractualist Tort Theory.

Perry on Pluralism

Ronen Perry (Haifa) has posted to SSRN Pluralistic Legal Theories:  In Search of a Common Denominator.  The abstract provides:

This Essay embarks on a meta-theoretical project to provide a unifying philosophical framework for pluralistic legal theories. Put differently, it seeks to identify a structural common denominator for all pluralistic theories of law, with a particular emphasis on private law (torts and contracts). The Essay first rejects the notion of complementarity coined by Nobel Prize laureate Niels Bohr, and applied to legal theory by Izhak Englard. It then advocates the allegedly Thomist aphorism hominem unius libri timeo (“I fear the man of a single book”), and connects it to Isaiah Berlin’s renowned distinction between the hedgehog and the fox.

Welcome to the Blogosphere: New Private Law

John Goldberg and Henry Smith have launched New Private Law:  Project on the Foundations of Private Law as a group blog.  As advertised, private law broadly, including contracts and property, is covered.  Torts enthusiasts should be cheered by the presence of not only Goldberg, but Keith Hylton, Tony Sebok, and Ben Zipursky as well.  Check it out!

AL: Bill to Overturn "Innovator Liability"

Last year, the Alabama Supreme Court let stand its holding that name-brand manufacturers can be liable for misrepresentations or failures to warn in regard to generic drugs they did not manufacture or distribute.  (Coverage here)  Now the legislature has sent a bill to the governor that would overturn the result.  The bill passed the Senate 32-9 and the House 86-14.  Legal Newsline has the story.

Burch on Issue Classes

Elizabeth Chamblee Burch (Georgia) has posted to SSRN Constructing Issue Classes.  The abstract provides:

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys.  But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action.  The result?  Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct.  At the other end of the regulatory spectrum lies the opposite problem.  Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — think the GM ignition switch debacle or the BP Oil Spill, for example.  Whether regulators are chasing splashy headlines, easy money, or public support, the result is a cacophony of litigation in dispersed fora that risks inefficient resource use and inconsistent verdicts regarding a defendant’s conduct.

A one-line sentence buried within Rule 23 offers a partial elixir for problems at both ends of the enforcement spectrum.  That sentence, Rule 23(c)(4), allows courts to certify certain issues for class treatment.  While issue certification is experiencing a renaissance in the courts, scholarship has stagnated.  Commentators have fixated on the technical to-be-or-not-to-be question of how to read Rule 23(c)(4) within the rule’s predominance requirement.  But they have offered strikingly little theory or guidance on how issue classes might revive private enforcement and coordinate fractured regulatory responses through issue preclusion.

This Article aims to fill that void with an alternative theory of class cohesion — a term that appears nowhere in Rule 23, but has emerged at the center of Supreme Court jurisprudence.  This theory not only informs the class-certification calculus by identifying core questions ripe for issue-class adjudication, but also simplifies vexing questions over the sufficiency of aggregate proof and class members’ ascertainability.  Shedding anachronistic, stereotypical notions that immutable characteristics like gender and race fuse members into a cohesive class can reveal what often unites groups for adjudication purposes: defendant’s uniform conduct.  When a defendant’s actions are non-individuated (GM’s failure to take appropriate safety precautions, for example), litigating the components within a claim or defense that regulate defendant’s conduct on a classwide basis can revive private enforcement and stymie inconsistent outcomes through preclusion.