Wednesday, April 29, 2020
I am sad to announce that Al Calnan, the longtime Southwestern Law School torts professor, passed away on April 20. His passing was unrelated to COVID-19. Al wrote in tort theory and was known as a dynamic teacher. A letter to Southwestern alumni is here. The Southwestern Law Review is dedicating its next issue to Al and Francis McGovern, both of whom spoke at a symposium at Southwestern in February and both of whom have since passed away.
Tuesday, April 28, 2020
J&J is facing thousands of suits alleging the talc in its baby powder causes cancer. A district judge in New Jersey, overseeing the MDL, just handed down a Daubert ruling allowing plaintiffs' experts to testify. George Conk has details at Otherwise.
Monday, April 27, 2020
Workers have sued Smithfield, which operates a number of meat-processing plants, over working conditions related to COVID-19. The workers are not suing for money damages, but an injunction to force Smithfield to comply with CDC and public health guidelines:
The suit, brought by a plant worker identified as Jane Doe and by a nonprofit that advocates for plant workers, accuses Smithfield of failing to provide workers with sufficient protective equipment; forcing them to work shoulder to shoulder; giving them insufficient opportunities to wash their hands; discouraging them from taking sick leave; and failing to implement a plan for testing and contact tracing.
Smithfield has had trouble with COVID-19:
Smithfield's South Dakota plant, which handles 5% of U.S. pork production, has become a coronavirus hot spot, with 783 workers testing positive for the virus so far and two of them dying. The first worker there tested positive for the virus on March 24, but the plant was not closed until April 14.
NPR has the story.
Friday, April 24, 2020
Christopher French has posted to SSRN America on Fire: Climate Change, Wildfires & Insuring Natural Catastrophes. The abstract provides:
America is on fire. The damage, destruction, and loss of life caused by wildfires have exploded over the past few decades. Nine of the ten worse fire seasons have occurred in the past fifteen years, with 2017 and 2018 being the worst years ever. Despite spending approximately $3.7 billion annually on fire suppression, more than 35,000 structures were lost to wildfires in 2017 and 2018, approximately $32 billion in property losses occurred, and more than 100 people were killed. More than forty million homes worth approximately $187 billion in the U.S. are currently at a high risk of destruction due to wildfires. In response to this crisis, the insurance industry has been dropping customers and refusing to insure homes that are considered at high risk for wildfires, while also excluding coverage under homeowners policies for other natural catastrophes such as floods and earth movement. As a result, natural catastrophes are largely uninsured in America today.
In addition to discussing the causes of the wildfire crisis, including climate change, and ways to mitigate the crisis, this Article analyzes the current insurance market for wildfires and other natural catastrophes in America. In doing so, it explores how other developed countries, such as Australia, Belgium, France, New Zealand, Norway, Spain, and Switzerland, insure natural catastrophes. It concludes by seeking to transform the insurance market in America for natural catastrophes by proposing the creation of a governmental insurance program that “bundles” coverages for natural catastrophes together in a single policy. Bundling the coverages would be a way to solve the correlated risk, adverse selection, and moral hazard problems that have driven private insurers from the insurance market for natural catastrophes and that plague insurance programs that cover only a single catastrophic peril, such as the National Flood Insurance Program.
Wednesday, April 22, 2020
Robert Jerry has posted to SSRN COVID-19: Responsibility and Accountability in a World of Rationing. The abstract provides:
The COVID-19 pandemic is the first modern public health crisis with the potential to overwhelm the public health care system. Health care is a shared society resource, and thus the ethical principles guiding its rationing require health care services, drugs, and equipment to be applied where they are most effective, which gives priority to patients most likely to benefit from treatment. Health care providers—primarily physicians—will make these rationing decisions, and providers deserve considerable latitude for good-faith decisions guided by settled ethical frameworks. Those disadvantaged by these decisions are likely to second-guess those who make them. Providers have a responsibility to make these decisions fairly, both procedurally and substantively, and, like all professionals, they should be held accountable for them. The legal standard of care requires health care professionals to exercise the skill and knowledge normally possessed by providers in good standing in the same field or class of practice in similar communities acting in the same or similar circumstances. But practicing medicine in crisis conditions, like those created by COVID-19, is not the same as or similar to practicing in non-crisis conditions. Thus, the standard of care, properly applied, expects less of health care professionals making decisions under the stress of COVID-19’s triage conditions. Because many health care providers do not perceive this to be true, and for pragmatic and normative reasons, policymakers should articulate clearer rules that limit the liability for health care providers’ rationing decisions, as well as other acts and omissions, occurring in crisis conditions. Clarified limitations on liability should not create absolute immunities, however. Health care providers should be accountable when practicing in crisis conditions for their acts, omissions, and decisions—including rationing decisions—that are criminal, reckless, willful or wanton, grossly negligent, or unlawfully discriminatory, or that are intentional violations of settled ethical norms.
Tuesday, April 21, 2020
In an attempt to incentivize health care workers and retired health care workers to join the fight against COVID-19, Governor Andrew Cuomo issued an executive order relieving health care workers of medical malpractice liability while providing services in the state's response to the disease. There is an exception for conduct which is grossly negligent or worse. The protection, modeled on Good Samaritan statutes, was later enacted in the state budget and will remain in place until the disaster emergency declaration is over. The Times Union has the story.
Monday, April 20, 2020
Hanoch Dagan and Avihay Dorfman have posted to SSRN The Value of Rights of Action: From Civil Recourse to Class Action. The abstract provides:
The ambition of this Essay is to examine the value of private rights of action, addressing the question why do private rights of action in the torts context matter. Our answer — that private rights may be instrumentally and, at times, non-instrumentally valuable to doing justice — has immediate implications for the civil-procedure law surrounding tort law. It suggests that where private rights of action are strictly instrumental, other devices may, under certain circumstances, be necessary, and possibly even sufficient, for doing justice.
Thursday, April 16, 2020
George Conk has coverage at Torts Today. The gist:
"Attorneys serving under the public defender, whether full-time staff attorneys or contracted pool attorneys, meet the definition of an OPD employee for TCA purposes, and have been treated as public employees in previous cases, Justice Jaynee LaVecchia wrote for the court. The OPD is an office within the executive branch, whose head is appointed by the governor with the advice and consent of the state Senate, LaVecchia said. It relies on state funding appropriated through the annual state budget."
Wednesday, April 15, 2020
At Torts Today, George Conk is reporting the death of the attorney who won Henningsen v. Bloomfield Motors in 1960. Here is the family's obituary:
Englewood, NJ Bernard Chazen - Englewood, NJ – age 96 on April 11, 2020
Born to Nathan and Esther Chazen in New York, New York.
Beloved husband of Bernice Chazen for 56 years who predeceased him in 2010. A wonderful father to David, Jonathan (his wife Cynthia) and Sarah (her husband Martin). He raised his family in Englewood and served on the Englewood Board of Education (1965-1969, President 1968-1969). General Counsel to the Englewood Redevelopment Agency (1970-1973).
A loving grandfather to grandsons Sam, Max, Ben, Daniel and Jacob. A first generation American citizen. Worked in his parent’s millinery shop as a child.
As a member of America’s greatest generation he enlisted in the Navy during World War II and served as a lieutenant aboard an LST in the Pacific Theater. Upon his return he attended Middlebury College, Columbia University (JD) and Rutgers University (LLM) thanks to the GI Bill. He continued to serve in the Navy reserves as a JAG officer and retired with the rank of Captain.
In 1949 he began to practice law in New Jersey. His contributions to American jurisprudence in the field of product liability improved the lives of all Americans. He believed that manufacturers have a responsibility to make their products safe for use. There was a time that manufacturers of a defective products were not legally responsible to the consumer because the consumer did not purchase the product directly from the manufacturer and lacked privity of contract. He searched for the right case to take up on appeal and change the law. He found it and argued the landmark 1960 case, Henningsen v. Bloomfield Motors, and pioneered modern product liability law into what became the law of the land.
Manufacturers are now incentivized to make safe products and avoid liability for defective products that injure consumers. He argued cases before the US Supreme Court.
He was an Associate Editor of the New Jersey Law Journal from 1967 until his retirement in 2008 and a prolific writer of editorials. He often lectured to other lawyers on a variety of legal topics for continuing legal education programs run by ICLE and Inns of Court. He was appointed to numerous committees by the New Jersey Supreme Court. He was appointed to numerous commissions by the Governor and served on the New Jersey Law Revision Commission. He was a Certified Civil Trial Attorney. He was considered a “lawyer’s lawyer”.
Tuesday, April 14, 2020
I missed this post from February. Jenny Wriggins posted about teaching Torts and race at the Race and the Law Prof Blog. Her conclusion:
Racism is becoming stronger in the U.S., despite the long struggles for racial justice in the U.S. and despite the fact that it is so deeply wrong. Our country has not completely addressed the history of race and racism in law. And this definitely is true in the teaching of tort law. Now is the time to make a serious start on this essential project.
Monday, April 13, 2020
Benjamin van Rooij and Megan Brownlee have posted to SSRN Does Tort Deter? Inconclusive Empirical Evidence about the Effect of Liability in Preventing Harmful Behaviour. The abstract provides:
This chapter assesses whether tort liability can have a deterrent effect and reduce risky and harmful behaviour. It discusses insights from key reviews of empirical work across regulatory domains. These reviews show that this body of empirical work, in all but one of the domains (corporate director liability towards shareholders) studied, does not find conclusive evidence that tort deters or that it does not deter. Studies do find some indication of negative side effects of tort regimes, such as lowering necessary services, enhancing unnecessary legal defensive practices and raising costs. The chapter concludes that common assumptions about the role tort can play in compliance require a more solid empirical basis. The chapter presents directions for future tort and deterrence research with a focus on better understanding the causal processes through which liability rules may shape human and organizational conduct.
Thursday, April 9, 2020
Tuesday, April 7, 2020
Kevin Tobia has posted to SSRN Legal Concepts and Legal Expertise. The abstract provides:
A recent wave of empirical legal scholarship reports surprising findings about various concepts of legal significance, including the concept of acting intentionally, causation, consent, knowledge, recklessness, reasonableness, and law itself. These studies typically examine laypeople, but often draw broader conclusions about legal experts or law. Findings about laypeople’s (“ordinary”) concepts have been taken to reflect the concepts of trained legal theorists, reveal biases affecting judges’ decision-making, and clarify subtle doctrinal features.
This Article questions the validity of such inferences, from empirical findings about ordinary concepts to conclusions about the concepts of those with legal expertise. It presents a case study concerning what it means to act intentionally. An experiment examines the judgments of four populations (N = 774): lay people, law students, non-law students, and United States judges. Legal training affected judgments in three ways, all of which suggest the acquisition of a distinctive legal concept. This case study supports the Article’s broader conclusion: empirical evidence about laypeople’s ordinary concepts does not necessarily carry straightforward legal implications. This defuses provocative empirical challenges regarding biased judging, raises new questions about the relationship between judges and juries, and provides a broader proof of principle: The acquisition of legal concepts is an under-studied but central form of legal expertise.
Monday, April 6, 2020
Mandy Gillip at Ballotpedia News writes:
The Supreme Court of the United States agreed to hear a case in its October 2020-2021 term concerning the Federal Tort Claims Act (FTCA). The case, Brownback v. King, came on a writ of certiorari to the United States Court of Appeals for the 6th Circuit.
In 2014, James King violently resisted arrest after being stopped by FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen. King was tried and acquitted of charges of assault with intent to do great bodily harm, aggravated assault of a police officer, and resisting arrest. He then sued the United States under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The U.S. District Court for the Western District of Michigan held Brownback and Allen had not violated King’s constitutional rights under Bivens. The district court also decided against King’s FTCA claims. On appeal, the 6th U.S. Circuit Court of Appeals reversed the district court’s ruling.
- Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1), on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.
Friday, April 3, 2020
Richard Cupp has posted to SSRN Considering the Private Animal and Damages. The abstract provides:
Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have, in dramatic fashion, moved from academic debate to high-profile litigation. Focusing on two recent cases, this short article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The most recent prominent case, Justice v. Vercher, is ongoing litigation seeking to designate a severely neglected horse as the plaintiff in a tort damages lawsuit against the horse’s owner. The second case, Naruto v. Slater, unsuccessfully sought to designate a monkey as the plaintiff in a copyright infringement lawsuit. Both cases illuminate significant implications in seeking to designate animals as plaintiffs in private law damages lawsuits. Thankfully, societal concern over animal welfare is rapidly increasing, and more needs to be done to protect animals. But efforts like Vercher and Naruto represent a societally harmful approach to animal protection. Such cases will probably continue to fail in the short term, but analogous lawsuits are nevertheless likely to proliferate over time because the stakes are so high – success could be a back door to breaking down legal barriers between humans and animals. Further, as societal views regarding animals quickly evolve, the potential for misguided rulings creating dangerous animal legal personhood through such lawsuits is real.
Thursday, April 2, 2020
At JD Supra, a team from King & Spalding discusses tort immunity under the PREP Act and COVID-19 Response Declaration. The basics:
Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 17, 2020, the Secretary of Health and Human Services (“HHS”) published the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The COVID-19 Declaration immunizes broadly certain entities from “suit and liability under federal and state law with respect to all claims of loss” related to the manufacture, testing, development, distribution, administration and use of certain countermeasures to COVID-19.
Wednesday, April 1, 2020
Barbara Pfeffer Billauer has posted to SSRN The 2018-2019 Measles Epidemic: Using the Law as a Public Health Response. The abstract provides:
Measles rates increased dramatically during the 2018-2019 season, both in the US and globally. This phenomenon is reflective of a general decline in world-wide vaccination. In the US, the outbreaks targeted the Ultra-Orthodox Jewish communities, as it did in Israel. This article explores various reasons for this sudden surge and evaluates various legal responses, demonstrating the power of the law in quashing epidemics and reaffirming the constitutionality of mandating vaccination, even in the face of objections such as violation of religious freedom, autonomy and liberty.