TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, May 31, 2019

Bagchi on Production Liability

Aditi Bagchi has posted to SSRN Production Liability.  The abstract provides:

It is well known that many consumer goods are produced under dangerous working conditions. Employers that directly supervise the production of these goods evade enforcement. Activists and scholars have argued that we must hold the manufacturers and retailers that purchase goods made in sweatshops accountable. However, there has been little movement toward such accountability.

Responsibility for the conditions under which goods are made — what I call “production liability” — entails assigning responsibility for workers to firms that do not directly employ them. Production liability, therefore, conflicts with deep intuitions about the boundaries of individual responsibility.

This Article offers a moral and economic defense of production liability that is responsive to that challenge. The Article identifies the particular moral responsibility that manufacturers bear as a public form of complicity. It further considers the economic logic of assigning legal liability to such firms and the optimal form that liability should take. This Article makes the case that production liability can update our legal regime for employment in the way that products liability did for consumer law.

May 31, 2019 in Scholarship | Permalink | Comments (0)

Thursday, May 30, 2019

Faure on an Economic Analysis of Product Liability

Michael Faure has posted to SSRN An Economic Analysis of Product Liability.  The abstract provides:

This chapter in a book on European product liability provides a summary of the economic approach to product liability. The economic theory of product liability based on the Coase Theorem is explained. Next, product liability when damage is suffered by third parties is analyzed. Specific attention is paid to the EU Product Liability Directive and to more recent literature.

May 30, 2019 in Products Liability, Scholarship | Permalink | Comments (0)

Wednesday, May 29, 2019

JOTWELL Torts: Engstrom on Kachalia et al. on Med Mal Communication-and-Resolution Programs

Tuesday, May 28, 2019

CA: Family Injured in Amusement Park Incident

On Saturday, at Castle Park in Riverside, a family of three was injured--the mother critically--on a log flume ride.  According to reports, the ride malfunctioned and the family's log flipped, throwing the family into the water:

"What it appeared is that there was no water flowing on the ride. There was a pump that had malfunctioned on the ride that caused that one car to come down the descent rapidly," Fire Captain Brian Guzzetta told KTLA-TV.

Castle Park stated that each of their rides is tested every day.  USA Today has the story.

May 28, 2019 in Current Affairs | Permalink | Comments (0)

Monday, May 27, 2019

Florida Becomes a Daubert Jurisdiction

The Florida Supreme Court has adopted the Daubert standard pursuant to its rulemaking authority, reversing a recent reaffirmation of the Frye standard.  

The decision is here:  Download 2019-107_disposition_146334_d29

Thanks to Mark Behrens for the tip.

May 27, 2019 in Current Affairs, Experts & Science | Permalink | Comments (0)

Thursday, May 23, 2019

Feinman on Contract and Claim in Insurance Law

Jay Feinman has posted to SSRN Contract and Claim in Insurance Law.  The abstract provides:

This article offers a new perspective on insurance law by examining and combining two basic features of insurance and insurance law: the nature of the insurance contract and the fact that most insurance law issues concern a disputed claim. Insurance law scholars are fond of reconceptualizing their subject. Insurance policies and insurance law have been likened to a means of public utility regulation, a product warranty, a social institution, or, perhaps mostly simply, a thing. This article represents another conceptualization of the subject, and one that may be less foreign to the subject and closer to the reality of the formation and performance of insurance relationships.

Every insurance policy is a contract between the policyholder and the insurer. Fundamentally, however, almost every insurance law problem, dispute, or doctrine is really about paying or not paying claims. These two features — contract and claim — are at the heart of most insurance law disputes. The significance of insurance as contract is generally recognized, but the centrality of claims, less so. The article examines each of them separately and then combines them. Doing so provides a perspective on a large number of insurance law issues, and that perspective should change the courts’ approach to a number of issues and doctrines. The focus is on personal lines, particularly first-party insurance, but the analysis also has implications in other settings.

The article first presents the contract and claim analysis. It then applies the analysis to several common issues in insurance law. The illustrations come from three different points in the life of an insurance policy. The first concerns a formation issue: when an insurer may use misstatements by a policyholder in the application process to avoid coverage. The second, and most general, addresses interpretation issues that concern the insurer’s performance of the insurance contract. The third concerns issues of policyholder and insurer performance after a claim is filed — the false swearing rule and the law of insurance bad faith. All three reinforce the insight that every doctrinal issue involves a conception of the insurance contract and arises because of a disputed claim. The discussion demonstrates that courts sometimes use similar analysis, describes those tendencies, suggests why they are incomplete, and uses the contract and claim analysis to make them explicit and more comprehensive. Other courts take quite different approaches; contrasting those approaches with the contract and claim analysis demonstrates what they get wrong. The result is both a demonstration of the usefulness of the article’s analysis and a beginning catalog of how it can reshape insurance law doctrine.

May 23, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, May 22, 2019

USSC Clarifies "Clear Evidence" for Preemption

Yesterday, in Merck Sharpe & Dohme v. Albrecht, the Court held that judges, not juries, should decide whether FDA actions preempt state tort suit alleging failure to warn.  The opinion explained that Wyeth v. Levine's "clear evidence" standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof:

This point of procedural clarity has enormous strategic value for products-liability defendants because it confirms that courts may conclusively rule on the pre-emption defense as early as a pre-answer motion, though the factual complexity of FDA communications likely will push the issue in many drug-pre-emption cases to summary judgment. 

Elizabeth McCuskey at SCOTUSblog has details.

May 22, 2019 in Current Affairs, Products Liability | Permalink | Comments (0)

Tuesday, May 21, 2019

USSC Refuses to Reconsider Feres Doctrine

Yesterday the Court refused to hear a case reconsidering the Feres Doctrine.  Justices Ginsburg and Thomas dissented from that decision.  ABA Journal has the story.

May 21, 2019 in Current Affairs | Permalink | Comments (0)

Monday, May 20, 2019

UVa Podcast: Abraham & Raschid on Autonomous Vehicles and Liability

UVa Law has a podcast, "Common Law," which is co-hosted by tortsprof Leslie Kendrick (she is Vice Dean).  The most recent version features Ken Abraham and alum Michael Raschid, chief legal officer and vice president of operations at Perrone Robotics, discussing the effect of autonomous vehicles on tort and insurance.

May 20, 2019 in Web/Tech | Permalink | Comments (0)

Friday, May 17, 2019

Viscusi on Med Mal Reform

Kip Viscusi has posted to SSRN Medical Malpractice Reform:  What Works and What Doesn't.  The abstract provides:

Concerns with medical malpractice liability costs have been a principal factor leading states to adopt a series of tort liability reforms. Medical malpractice premiums have been declining, creating less of a cost-based impetus for additional reforms. The most consistent empirical evidence indicating statistically significant effects of medical malpractice reforms has been for caps on non-economic damages. Damages caps reduce insurance losses and foster insurer profitability, consistent with the objective of caps. The impacts of caps are greatest for insurance companies that otherwise would have experienced the greatest losses in the state. However, caps may reduce payouts to plaintiffs, potentially reducing the funds available to cover economic losses and attorney fees. A more recent medical malpractice reform, apology laws, may have a counterproductive effect by encouraging apologies that have the unintended consequence of increasing litigation and damages payments. There is also evidence that medical malpractice reforms affect the delivery of medical care and the supply of physicians, but these effects are not as prominent as the impacts on payouts. Medical malpractice liability remains an inefficient way to transfer funds to injured patients. The share of litigation and defense expenses relative to costs remains high. The early offer reform proposal is one approach that is directed at reducing these costs.

May 17, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, May 14, 2019

Sawicki on the Conscience Defense in Med Mal Cases

Nadia Sawicki has posted to SSRN The Conscience Defense to Malpractice Cases.  The abstract provides:

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in the provision of reproductive health services – including abortion, sterilization, contraception, and emergency contraception. 

Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate – that is, the precise procedural mechanisms by which they protect those who decline to provide medical services that violate their deeply-held conscientious beliefs. 

This Article demonstrates that state laws vary dramatically in the types of conscience protections they offer. States may immunize health care providers from a wide range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in education, and denial of public or private funding, among others. Of these, immunity from civil liability is by far the most common procedural protection. In a majority of states, this immunity is absolute – providing no exceptions in cases of malpractice, denial of emergency treatment, or patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.

While many scholars have examined the impact of conscience laws on patient access to medical care, there has yet been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied such care. This Article not only raises awareness of the previously-unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws. This Article highlights opportunities for future research on the question of whether conscience-driven health care providers should be granted legal immunity from all possible adverse consequences of their actions, or whether these protections should be balanced against state interests in ensuring that patients who are injured by provider refusals are not denied opportunities for tort recovery.

May 14, 2019 | Permalink | Comments (0)

Monday, May 13, 2019

Rabin & Picard on the Regulation of High-Risk Medical Device Cases

Bob Rabin and Alyssa Picard have posted to SSRN Reassessing the Regulation of High-Risk Medical Device Cases.  The abstract provides:

In 1976, Congress enacted the Medical Device Amendments (MDA), plugging a gap between regulation of prescription drugs, which were subjected to a premarket protocol aimed at assuring safety and efficacy, and medical devices, which were solely monitored for adulteration and misbranding after distribution in the marketplace.

Class III devices “usually sustain or support life, are implanted, or present potential unreasonable risk of illness or injury;” they represent the remaining 10% of medical devices and include devices like pacemakers, breast implants, and intrauterine devices. Only Class III devices are required to go through the premarket approval process (PMA)—a process that requires clinical data. In a leading case on the preemption of tort claims, Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), the U.S. Supreme Court had occasion to review the rigor of PMA premarketing oversight and concluded that it was indeed notable for its scrupulousness. On average, the Court noted, the FDA spent 1,200 hours reviewing an application, which included reports of every study and investigation of the device, a description of component parts, samples of products, a specimen of the proposed labeling, and descriptions of the production, manufacturing, packaging, and installation methods. As part of the PMA process, the FDA had discretion to bring in a panel of outside experts and could request more information or data from the manufacturer. 

Viewing the process through this lens, the Court preempted the plaintiff’s tort claim, which was based on failure to adequately warn of the risk that defendant manufacturer’s balloon catheter would rupture during angioplasty surgery—a risk that came to fruition. According to the Court, Section 360k of the MDA—an express preemption clause barring “any requirement…which is different from, or in addition to, any requirement…[under the Act] which relates to the safety or effectiveness of the device….”—was applicable to the claim.

A sharp line was drawn between the PMA process in Riegel and FDA’s 510(k) substantial equivalence review, which only subjects a device to a limited form of review to determine whether it is “substantially equivalent” to a preexisting legally marketed device. Twelve years earlier, in Medtronic, Inc., v. Lohr, 552 U.S. 312 (2008), the Supreme Court found substantial equivalence review insufficiently rigorous to preempt tort claims. Taken together, the two decisions seemed to mark out a persuasive boundary between tort claims that would, if allowed, impermissibly re-tread the same ground covered by the agency (via the PMA process), and claims premised on a risk/utility tort process complementary to the once-over-lightly of “substantial equivalence” review.

In this Article, Part I probes more deeply into the case for recognizing a safe harbor from tort claims under the existing regime of FDA premarket assessment of high-risk devices. Part II addresses post-market FDA strategies for assessment of product safety. Part III shifts the focal point to tort, revisiting the shadow cast by preemption over tort as a complementary regulatory strategy. Finally, Part IV offers concluding thoughts on the necessity of a fresh look at the regulatory process in action—and reconsideration of how it might be improved in this vital area of health and safety. 

May 13, 2019 in Scholarship | Permalink | Comments (0)

Friday, May 10, 2019

LA: Auto Tort Reform Stalls in the Senate

On Tuesday, I reported that an auto tort reform bill in Louisiana was going up for a vote in the state Senate Judiciary Committee:

[The] measure would increase the time that victims of crashes have to file a lawsuit from one year to two; reduce the jury trial threshold from $50,000 to $5,000; take away the ability to sue the insurance company directly; plus allow judges and juries to review claimed medical costs.  The bill also includes a provision that if costs go down, the Department of Insurance would push insurance companies to lower their rates.

The committee referred the bill to a fiscal office to determine how much it would cost, likely ending its viability in this session which ends on June 6.  The committee also rejected a bill that would allow a judge, outside the presence of the jury, to decide whether to allow evidence of whether the plaintiff was wearing a seat belt at the time of the injury.

The Advocate has the story.

May 10, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, May 8, 2019

Davis on Pharmaceutical Products Liability

Mary Davis has posted to SSRN Time For a Fresh Look at Strict Liability for Pharmaceuticals.  The abstract provides:

Over the ensuing 50 years from the promulgation of § 402A, products liability in general has seen a retrenchment from strict liability. The Restatement (Third) of Torts: Products Liability openly adopted negligence principles for design and warning claims, and created an entirely new provision to protect pharmaceutical manufacturers even more robust than 402A's comment k. Regarding pharmaceutical liability, the trend away from any liability at all has been remarkable. In the face of this legal history, and in spite of it, this Article proposes taking a fresh look at strict liability for pharmaceutical injuries. What has changed since the adoption of the Products Liability Restatement, which endorsed a virtual immunity from liability for pharmaceuticals? Such a suggestion is likely to be met with cries of “absolute liability” and concern for a chilling effect on innovation for much needed therapeutic treatments. There are three primary reasons this Article proposes a reassessment for strict tort liability in this context. First, the expansive federal preemption doctrine that the United States Supreme Court has fashioned in the last decade defeats almost all state tort liability for pharmaceuticals, particularly for generic pharmaceuticals which comprise over 85 percent of the prescriptions in this country. Second, both the pre-marketing approval process and the post-marketing risk assessment regulatory structures fundamentally cannot adequately identify, communicate, and reduce adverse drug events and, consequently, those events are increasing and likely to continue to do so. Third, the structure of pharmaceutical marketing, increasingly unregulated, has influenced prescribing practices in ways that compound the likelihood and severity of adverse drug events.

These trends in pharmaceutical marketing practices, coupled with the systemic limitations on information-gathering and response in the regulatory system, has created a demand for pharmaceuticals that increases the likelihood of adverse drug events with no meaningful mechanism to identify and reduce the risks presented. While the legal landscape has become barren to the use of tort liability to compensate for the inevitable risk of adverse drug effects, the medical care landscape has become more fertile for those side effects to occur. The convergence of these trends supports a reevaluation of the use of strict, non-fault liability on producers of pharmaceuticals for the harms their products cause.

May 8, 2019 in Products Liability, Scholarship | Permalink | Comments (0)

Tuesday, May 7, 2019

LA: Tort Reform Aimed at Auto Insurance Rates

Louisiana has the second-highest auto insurance rates in the nation, and the legislature is considering legislation supporters claim will reduce those rates.  A measure to put a moratorium on highway billboards, where trial lawyers often advertise, was defeated overwhelmingly.  A measure designed to expedite jury trials also failed.  The major piece of legislation goes up for a vote today:

[The] measure would increase the time that victims of crashes have to file a lawsuit from one year to two; reduce the jury trial threshold from $50,000 to $5,000; take away the ability to sue the insurance company directly; plus allow judges and juries to review claimed medical costs.  The bill also includes a provision that if costs go down, the Department of Insurance would push insurance companies to lower their rates.

Even the chief lobbyist for the auto insurance industry is dubious the bill would reduce premiums:

“It’s a misnomer to ever really believe that your rates are going to go down,” testified Kevin Cunningham. “There are so many pressures for it to go up: medical costs continue to go up, the cost of the vehicle continues to go up, the amount of wages that you have to compensate for continues to go up. So maybe what you do is slow the rate of rise.”

KPVI has the story.

May 7, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, May 6, 2019

MO: Tort Reform Bills Advance

Last week tort reform bill advanced in both houses of the Missouri legislature.  The state House passed a bill limiting punitive damages to cases in which a plaintiff proves "by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause."  The state Senate passed a bill limiting discovery.  In the words of its sponsor: "My legislation places limits on the frequency and extent of discovery requests and requires those requests are proportional to the needs of the case."  The House bill has been sent to the Senate.  The Senate bill needs one more roll-call vote before it can be sent to the House.  Though only 2 weeks remain in this session, leaders in both houses say it is not too late to pass the bills and send them to the governor.  The Jefferson City News Tribune has the story.

May 6, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Saturday, May 4, 2019

Billauer on a Feminist-Tort Approach to Wrongful Birth

Barbara Billauer has posted to SSRN Re-Vitalizing Wrongful Birth Claims:  A Feminist-Tort Approach.  The abstract provides:

Wrongful birth claims are brought to compensate parents for damages incident to the birth of an unwanted child occasioned by physician negligence. These cases often apply in the context of failed sterilization or failing to advise that the fetus is suffering a genetic defect, thereby foreclosing the option of abortion. Generally, damages are limited to harm occurring peri-pregnancy. Claims for child maintenance are routinely denied on the basis of an imaginary offset conjured by judges: the joys of child-raising compensate for the costs of child-rearing.

This article discusses why such reasoning deprives the mother of her right of autonomy and raises other arguments for allowing such damages from a feminist tort perspective. I further raise the inclusion of a heretofore unrecognized harm: the effect of the unwanted child's birth on its siblings. The drain of an additional child on family resources, both emotional and financial, affects not only the parents, but negatively impacts the entire family unit. This additional harm vitiates any possible offset - even if one, arguendo, can be said to exist.

May 4, 2019 in Scholarship | Permalink | Comments (0)

Friday, May 3, 2019

Perry on Liability for Cyberbullying

Ronen Perry has posted to SSRN Civil Liability for Cyberbullying.  The abstract provides:

Cyberbullying has become a notorious epidemic, culminating in widely publicized suicides. Whether a new and distinct problem or an old one in a new guise, the technological setting has undoubtedly generated new challenges and, at the same time, new opportunities for legal response. Regrettably, while delegation of power to educational institutions and criminalization of cyber-misconduct are relatively common, at least in public discourse, the potential impact of civil liability has been downplayed. This Article puts the underexplored regulatory tool under the spotlight. It provides systematic legal and economic analyses of civil liability for cyberbullying, based on a trichotomy of potential defendants—primary wrongdoers, real-life supervisors (parents, schools), and virtual supervisors (mostly online platform operators).

Ultimately, the Article lays the foundations for an efficiency-oriented model which integrates technological features to reduce supervisors’ information costs. In order to incentivize parents to reasonably use advanced surveillance applications, the proposed model imposes liability when failure to employ such tools results in juvenile cyber-wrongdoing, in addition to standard liability for not taking reasonable precautions upon learning about the risk. The model also imposes liability on schools for cyberbullying through school devices if they failed to: (1) enforce reliable identification of users, (2) employ advanced surveillance tools, or (3) take reasonable measures to prevent harm upon notification of possible misconduct. Finally, the model holds a virtual supervisor liable if the victim has insufficient information to identify the wrongdoer, the victim gave notice of the complaint, and the virtual supervisor did not properly respond.

May 3, 2019 in Scholarship | Permalink | Comments (0)

Thursday, May 2, 2019

Congress: Bill Would Allow Troops to Sue for Med Mal

A bipartisan bill that would overrule the Feres Doctrine has been introduced in the House of Representatives:

The bill would create an exemption to the Federal Tort Claims Act — a law which allows citizens to sue the government for negligence or wrongdoing — and allow them to file medical malpractice lawsuits. However, it would only cover cases that are still pending on, or occur after the bill's passage, as a way to limit costs, according to a press release provided by  (Rep. Jackie) Speier's (D-CA) office.

Additionally, the bill would have no impact on those instances of medical malpractice that occur during combat operations, aboard ships, or at battalion aid stations.

Under the proposed bill, service members would be able to sue for malpractice that occurs at major military clinics and hospitals, where both civilians and military personnel are already treated.

Task & Purpose has the story.

May 2, 2019 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, May 1, 2019

Lytton on Food Safety

Tim Lytton has published Outbreak:  Foodborne Illness and the Struggle for Food Safety.  The blurb provides:

Foodborne illness is a big problem. Wash those chicken breasts, and you’re likely to spread Salmonella to your countertops, kitchen towels, and other foods nearby. Even salad greens can become biohazards when toxic strains of E. coli inhabit the water used to irrigate crops. All told, contaminated food causes 48 million illnesses, 128,000 hospitalizations, and 3,000 deaths each year in the United States.
With Outbreak, Timothy D. Lytton provides an up-to-date history and analysis of the US food safety system. He pays particular attention to important but frequently overlooked elements of the system, including private audits and liability insurance.

Lytton chronicles efforts dating back to the 1800s to combat widespread contamination by pathogens such as E. coli and salmonella that have become frighteningly familiar to consumers. Over time, deadly foodborne illness outbreaks caused by infected milk, poison hamburgers, and tainted spinach have spurred steady scientific and technological advances in food safety. Nevertheless, problems persist. Inadequate agency budgets restrict the reach of government regulation. Pressure from consumers to keep prices down constrains industry investments in safety. The limits of scientific knowledge leave experts unable to assess policies’ effectiveness and whether measures designed to reduce contamination have actually improved public health. Outbreak offers practical reforms that will strengthen the food safety system’s capacity to learn from its mistakes and identify cost-effective food safety efforts capable of producing measurable public health benefits.

At the University of Chicago Press, there is a 20% discount with the code UCPNEW.

May 1, 2019 in Books | Permalink | Comments (0)