TortsProf Blog

Two by Goldberg & Zipursky

John Goldberg & Ben Zipursky have posted two pieces to SSRN.  First, from this year's AALS Torts Panel, The Myths of MacPherson.  The abstract provides:

For a symposium marking the centenary of Macpherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.

Next, Triangular Torts and Fiduciary Duties.  The abstract provides:

When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. “Triangular torts,” as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter, we explain when such rulings are warranted — and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or patient.

(Via Solum/LTB)

Lawyers to File Negligence Claims Against EPA for Flint Water Contamination

Lawyers for residents of Flint, MI have filed administrative complaints, required as a step to suing government agencies, against the EPA for damage caused by lead in the water.  The complaints reference an alleged email from an agency expert warning about the problem in June 2015.  Reuters has the story.

MO: House Passes Bill Abolishing Collateral Source Rule

The Missouri House passed a bill abolishing the collateral source rule.  A version of the bill has already passed the Missouri Senate.  The Missouri Times has details.

Legal Writing Conference: Drafting Statutes and Rules

Duquesne is hosting a legal writing conference on drafting statutes and rules on December 3, 2016.  Former PA Governor Tom Corbett and Pennsylvania Senate Minority Leader Jay Costa are among the speakers.  The flyer, including a call for proposals, is here:  Download The Fifth Colonial Frontier Legal Writing Conference Call for Proposals (Second Announcement)

JOTWELL Torts: Engstrom on Radin on Boilerplate

Over at JOTWELL, Nora Engstrom reviews Margaret Jane Radin's Boilerplate:  The Fine Print, Vanishing Rights, and the Rule of Law.

Civil Jury Project at NYU Law School Fellowship (Updated: Position Filled 7/11/16)

The Civil Jury Project at NYU Law School is opening a position for a one-year fellowship.  The Project is currently undertaking research on the role of the civil jury.  In its first year, the Project held a conference at NYU on the current use of jury trials and hosted Justice Sotomayor for a discussion of that theme.  This fall the Project will host a conference on the role of juries in patent disputes.  The Project is also sponsoring empirical research on trial innovations and jury capabilities. 

 

The Fellowship offers an opportunity for a year of research on topics related to civil jury trials.  It pays competitively and all benefits.  The Fellow is expected to assist in the work of the project and help oversee empirical and other research, as well as to help generate materials for the Project. 

 

Ideally, fellows will be top graduates looking for a year between clerkships or before starting a clerkship.  Any interested candidates should write to:

 

[email protected] and should include a cover letter and résumé.  Please write Research Fellow for The Civil Jury Project at NYU School of Law in the subject line of the email. 

Sam Issacharoff and Cathy Sharkey are the faculty directors.  The CJP link: http://civiljuryproject.law.nyu.edu/

 

Updated:  Position Filled 7/11/16

Defects in Guns

About two weeks ago, Bloomberg BNA had a piece on defects in firearms.  No agency has the authority to force a recall, meaning voluntary recalls by manufacturers and class actions are the only effective methods.  Class actions are rare.  Victor Schwartz is quoted extensively on "regulation by litigation."

AR: Tort Reform by Ballot

On Wednesday, Arkansas's attorney general approved the wording of a proposed ballot item to amend the constitution that would instruct the state's legislature to set a cap on punies in med mal cases at no less than $250,000.  It would have to be adjusted for inflation every 2 years.  Lawyers would also be prohibited from charging over one-third as a contingency fee.  With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot.  (Via Arkansas News)  Punies in med mal cases are extremely rare, but, if awarded, tend to be in high amounts.

UT: Children Under the Age of 5 Cannot Be Liable for Negligence

The Utah Supreme Court recently adopted a bright-line cutoff for liability for negligent children, following R3 by setting the limit at 5 years old.  The case involved a 4 year old who threw a rubber dolphin at his babysitter.  Unfortunately, the dolphin hit the babysitter in the eye.  She had just had a cornea transplant and the accident blinded her.  The Volokh Conspiracy has the story.

FL: Supreme Court to Decide Constitutionality of "Ex Parte Communications" Med Mal Reform

In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:

In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.

In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA.  The 1st District Court of Appeal upheld the law's constitutionality last year.  The Florida Supreme Court will now decide the issue.  A date for oral argument has not been set.  Health News Florida has details.

Suit Against Gun Maker in Newtown Massacre Allowed to Proceed

Back in February, I reported about a suit brought by families of the children murdered in Newtown against gun manufacturers.  The plaintiffs, attempting to get around the Protection of Lawful Commerce in Arms Act of 2005, advanced a negligent entrustment theory.  The judge has now ruled that the claim may proceed.  The New York Times has details.

11th Edition of Epstein & Sharkey's Casebook Available

From the authors: 

We are excited to launch the 11^th edition of our casebook, Cases and Materials on Torts, which marks a real sea change in the four short years since we teamed up as co-editors.  We have redesigned our book in response to the new sensibilities of the age.  For the first time, the book contains historical images, cartoons, tables, and charts that are set off from the main text to supply visual background information about the persons, places, and things that hold center stage in the cases and materials of the book.  The design of these materials has been spruced up with red headings to mark transitions and with boxes that contain key provisions of the various Restatements of Torts.

In response to the suggestions of our faithful users, we have judiciously shortened the material by thinning out the notes and eliminating some of the less popular principal cases.  In doing so, we have held fast to the intellectual rigor, historical depth, and careful case selection and notes found in the previous ten editions.  But we have embraced change as well, adding diverse perspectives (such as race and gender-based critiques of damages calculations, which have gained additional judicial attention), incorporating contemporary empirical scholarship (especially on medical malpractice, damages and jury decision-making), addressing the increasing influence of technology (such as privacy and defamation in the Internet age), and keeping pace with modern trends in business tort litigation, including the most recent the Third Restatement project on liability for economic harms (such as fraud and negligent misrepresentation).

To get a feel for the pedagogy in our book, we encourage you to have a look at a sample chapter posted on our Companion Website.  In your review of this chapter, here are a few noteworthy features (which are representative of those that appear throughout the book):

• Judge portraits.  See pages: 141 for Tindal, 144 for Holmes, 170 for Hand, and 172 for Posner and Calabresi
• Charts and graphs.  Look to page 236 for one depicting “vanishing trial”
• Judge vs. jury section, including reference to current empirical study of jury/judge decision-making (245-48)
• Boxes.  This one depicts significant Restatement provisions and pattern jury instructions (252-3)
• Cartoons and other images  that engage students.  See page 139 for a cartoon from The New Yorker.
  

Our goal is nothing short of producing a Torts casebook for the next generation of torts professors and students.  With that in mind, the new 11^th Edition will now also be available digitally, as a Connected Casebook.  In addition to offering students an enhanced eBook with note taking and highlighting capabilities, the “connected” version of our casebook also includes an outlining tool, a wealth of self-assessment materials – including multiple choice and essay questions, and analytics that enable the student or professor to see which topics may need further clarification or study. 

We are indebted to our torts colleagues across the country and now two generations of torts students (at Chicago, Columbia, and NYU) for their received wisdom on various topics and issues raised in our book.  We would be delighted to hear from anyone interested in exploring our book in either 1L torts courses or advanced torts or business torts courses.

If you’d like to receive a review copy of our book, please click here.

Thank you for your consideration,

Richard Epstein, [email protected]

Catherine Sharkey, [email protected]

CO: Strict Privity Rule Upheld for Legal Malpractice

The Colorado Supreme Court held attorneys owe no duties to non-clients, such as the beneficiaries of a will, absent allegations of fraud, a malicious or tortious act, like negligent misrepresentation.  JD Supra Business Advisor has details.

Two by Sharkey

Cathy Sharkey has posted two pieces to SSRN.  First, States v. FDA.  The abstract provides:

In the United States, food and drug safety is regulated in two ways: a stringent ex ante, national regime led by the Food and Drug Administration (“FDA”) and a robust ex post system of state-law enforcement. This federalist structure, operating on dual regulatory levels, sets the stage for synergy and for conflict.

Two recent high-profile preemption lawsuits showcase a novel dimension of the dual regulatory structure: the role of states as competing and/or complementary actors vis-à-vis the FDA in regulating food and drug safety. In Zogenix, Inc. v. Patrick, a federal district court enjoined the Massachusetts government from enacting a statewide ban on Zohydro, an FDA-approved opioid analgesic drug, but upheld the state’s subsequent prescription and dispensation-related restrictions. In Grocery Manufacturers Association v. Sorrell, food industry representatives challenged a recently enacted Vermont law mandating labeling of genetically engineered food—labeling that the FDA had not required.

Both cases explore how states can regulate drug and food safety without treading impermissibly upon the FDA’s turf. In doing so, they raise the issue of who should determine if state regulatory efforts advance or impede the federal regulatory scheme. Are courts or the regulating agencies the better arbiters? If the latter, when are their conclusions entitled to judicial deference, and how much?

This Article advances two primary claims. First, courts, when facing implied obstacle preemption challenges to state regulations, should consider the FDA’s view on the matter—namely whether the agency itself considers the state-level regulation to conflict with its national regulatory agenda. In Zogenix, the court, strikingly, paid no attention to the FDA Commissioner’s overt support of Massachusetts’s proposed restrictions on the prescribing and dispensing of Zohydro. In Sorrell, the court had before it informal policy guidance from the FDA that suggested that the agency was somewhat open to state labeling mandates. Deference to the FDA’s position in each case would have provided clear resolution of the preemption challenge.

Second, these cases reiterate and reinforce the argument at the heart of the ACUS 2010 Recommendation, Agency Procedures for Considering Preemption of State Law: if there is ever to be a coherent body of case law and regulatory policy in the realm of food and drug laws, courts must probe the FDA’s record on its examination and consideration of relevant state interests in the course of the federal regulation enactment process. Rather than blindly deferring to the federal agency’s view, courts should evaluate whether that view was the product of a responsible process that afforded states the chance to articulate how their own proposed state regulation fits with the federal regulatory scheme.

Next, The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence.  The abstract provides:

The BP oil spill litigation and subsequent settlements provide an opportunity to explore a novel societal economic deterrence rationale for classwide supra-compensatory damages. Judge Jack Weinstein was a pioneer in the field of punitive damages class certification. In In re Simon II, he certified a nationwide punitive-damages-only class in a multijurisdiction, multidefendant tobacco lawsuit. Using Judge Weinstein’s innovations in In re Simon II as an analytical lens, the Article evaluates the future prospects for classwide punitive damages claims.

Specifically, the Article considers how private litigants might adopt a societal damages approach in negotiating and achieving class action settlements. Class action settlements readily accommodate the “public law” dimension of societal damages, as demonstrated by the classwide punitive damages settlement with BP’s co-defendant Halliburton. Indeed, on closer inspection, even the BP compensatory damages class settlement has a surrounding aura of societal damages. For even that ostensibly purely compensatory arrangement included an unusual (and mostly overlooked) feature: a provision for supra-compensatory multipliers applicable to certain claimants. This Article advances the new idea that these supra-compensatory multipliers are a form of classwide societal damages embedded within the settlement, and, in turn, a potential blueprint for nascent punitive damages classes of the future.

PA: Bill to Extend Sexual Abuse Statutes of Limitation Approved by House Judiciary Committee

In the wake of the grand jury report on sexual abuse of minors in the Altoona-Johnstown Diocese, the House Judiciary Committee approved the removal of statutes of limitation in sex crimes and extending the statute of limitations until the victim turns 50 years old for civil cases.  There was, however, no provision for a 2-year retroactive window to allow past victims to sue.  Pennlive has details.

Ripstein: Private Wrongs

Arthur Ripstein's Private Wrongs is now available from Harvard University Press:

A waiter spills hot coffee on a customer. A person walks on another person’s land. A moored boat damages a dock during a storm. A frustrated neighbor bangs on the wall. A reputation is ruined by a mistaken news report. Although the details vary, the law recognizes all of these as torts, different ways in which one person wrongs another. Tort law can seem puzzling: sometimes people are made to pay damages when they are barely or not at fault, while at other times serious losses go uncompensated. In this pioneering book, Arthur Ripstein brings coherence and unity to the baffling diversity of tort law in an original theory that is philosophically grounded and analytically powerful.

Ripstein shows that all torts violate the basic moral idea that each individual is in charge of his or her own person and property, and never in charge of another individual’s person or property. Battery and trespass involve one person wrongly using another’s body or things, while negligence injures others by imposing risks to them in ways that are inconsistent with their independence. Tort remedies aim to provide a substitute for the right that was violated.

As Private Wrongs makes clear, tort law not only protects our bodies and property but constitutes our entitlement to use them as we see fit, consistent with the entitlement of others to do the same.

Lens on Product Recalls

Jill Lens has posted to SSRN Product Recalls:  Why is Tort Law Deferring to Agency Inaction?.  The abstract provides:

Tort law currently recognizes liability related to a product recall in only narrow circumstances. Liability is possible if the manufacturer acts unreasonably in an agency-ordered recall or in a voluntary recall, which is likely the result of agency encouragement. What this narrow standard leaves out is possible liability for a manufacturer’s choice to simply not recall. But courts agree that only government agencies are equipped to evaluate the reasonableness of a recall and to determine if one is justified. Thus, if an agency never effects a product recall, tort liability is not possible.

A few commentators have applauded or criticized the narrow standard for liability. But this Article is the first to thoroughly question the standard in light of its real basis—deference to administrative agencies. The Article contrasts this complete deference on recall orders to the very limited deference courts give to agency determinations in traditional defect claims, modern post-sale warning claims, and within decisions to punish the manufacturer by imposing punitive damages. The Article also questions the wisdom of complete deference to an agency’s inaction in not ordering a recall and the legal validity of such deference based on its inconsistency with negligence per se principles. Last, the Article argues that there is nothing special about product recalls deserving of such special deference.

Agriculture-Related Torts

For a couple years, I have posted torts items from Roger McEowen at Iowa State's Center for Agricultural Law & Taxation.  Roger is now with Washburn's law school and produces the Washburn Agricultural Law & Tax Report.  Check it out.

Fox on Reproductive Negligence

Dov Fox has posted to SSRN Reproductive Negligence.  The abstract provides:

Should a fertility clinic have to compensate for negligently losing a person’s frozen eggs? Or for implanting more embryos than a couple had asked for, leading them to have an extra kid? Should a doctor be liable for misadvising a woman that keeping a pregnancy would endanger her health, leading her not to have the child she wanted? Or for botching a vasectomy that foists on a couple the one they had sought to avoid? Should a sperm bank owe damages for using genetic material from a stranger instead of a spouse, or from a donor who looks nothing like the one that a couple had chosen, or from a pre-sorted sample that would create girls instead of one for boys? For the thousands today who turn to health care specialists to help avoid or pursue parenthood, the most serious external threat to their reproductive lives comes not from any government policy, but from professional errors that destroy embryos, switch donors, and leave tubes untied. These wrongful frustrations of control over procreation inflict distinct and profound injuries even when unaccompanied by physical harm or property loss. It is not as if those who would tolerate such setbacks can defend them by reference to their ostensible promotion of socially valuable purposes. Yet public law does not regulate reproductive negligence any more than private law remedies it.

This Article makes three contributions. First, it introduces a right that entitles individuals to recover for procreative misconduct, independent of tangible harms to other protected interests. This right protects individual interests in those expectations of control over pregnancy, parenting, and pre-selection that professional assistance make reasonable and public policy leave legitimate. Second, it develops a framework to understand and apply the right in terms of whether negligence (1) imposes procreation on individuals who enlisted support from specialists precisely to avoid it; (2) deprives those who pursued procreation of opportunities for pregnancy or for parenthood; or (3) confounds more particular procreative goals for a child with or without certain genetic traits. Third, it concretizes such intangible injury as a function of (a) the severity in setbacks to specified interests, and (b) the probability that professional misconduct is responsible for having caused it. Damages for the frustration of reproductive interests would accordingly be reduced, for example: where procreation is imposed, in proportion to the role of user error over and above birth control malfunction; where it is deprived, based on the role of patient infertility beyond embryo loss, and; where it is confounded, to uncertainty in genetic testing, independent of its substandard execution.

 

Prosser Letters: 1917-1948, Revised Version Available

The final version of my first piece on Prosser's letters is now available here.  The updated version contains material from an unpublished dissertation on Prosser's father, who played a crucial role in the development of vocational education, and materials from the Harvard archives.  I am delighted by the editing work at the Iowa Law Review.