TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, August 31, 2020

Long on IIED in the Workplace

Alex Long has posted to SSRN Retaliation, Humiliation, and Extreme and Outrageous Conduct:  IIED in the Workplace.  The abstract provides:

Citing the need to preserve managerial discretion, courts frequently espouse the need to adopt an “especially strict approach” in cases of intentional infliction of emotional distress (IIED) in the workplace. As a result, it is notoriously difficult for employees to prevail upon IIED claims against their employers. At the same time, a few courts have recognized that one form of employer conduct may merit special treatment when assessing an IIED claim against an employer. According to some courts, the fact that an employer has engaged in retaliatory conduct may be “a critical and prominent” factor in assessing an employer’s behavior. This Article argues that other courts should also recognize retaliatory conduct as a weighty factor when considering whether such conduct meets the threshold of “extreme and outrageous” conduct for purposes of an IIED claim. Drawing upon social science research into the areas of humiliation and retaliation, this Article generally agrees with courts that have concluded that workplace retaliation often has a greater detrimental impact upon the victim than other forms of non-actionable employer conduct and, therefore, should be given special weight in the analysis of the extreme and outrageous nature of employer conduct.

August 31, 2020 in Scholarship | Permalink | Comments (0)

Friday, August 28, 2020

IL: TikTok Sued for Intrusion Upon Seclusion

The app TikTok has been sued in the Northern District of Illinois for intrusion upon seclusion:

One of the specific allegations against the company’s application is that it collects user’s private draft videos that were never intended for publication…without consent. The videos according to the plaintiff class are then mined by Chinese engineers for biometric identifiers and information. The expectation of privacy in these instances may indeed meet the elements of the Intrusion Upon Seclusion cause of action. As previous case law notes, consent is a defense to Intrusion Upon Seclusion, but only as far as the consent given.

ClearanceJobs has the story.

August 28, 2020 in Current Affairs, Web/Tech | Permalink | Comments (0)

Wednesday, August 26, 2020

French on Forum Shopping in COVID-19 Business Interruption Claims

Christopher French has posted to SSRN Forum Shopping COVID-19 Business Interruption Insurance Claims.  The abstract provides:

Insurance disputes are typically governed by state law, and state insurance laws vary considerably, with some states being favorable to policyholders and others being unfavorable. With forum shopping, a plaintiff often has many choices regarding where it can bring a lawsuit, including multiple states in which to bring the case and whether to bring the case in federal or state court. Of the over 900 COVID-19 business interruption insurance lawsuits filed thus far, more than 600 of them have been filed in federal court, with more than 100 filed as class actions. Many of them were also filed in states with insurance laws that are not favorable to policyholders.

Conventional wisdom provides that a plaintiff’s chances of winning are generally much higher in state court than in federal court and that historically federal class actions against insurers have been successful only approximately twenty-five percent of the time. So, why were so many of the COVID-19 business interruption insurance cases filed in federal court in unfavorable states and as class actions when the historical chances of winning are so low in such forums, particularly as class actions?

This Essay provides some possible answers to that question. In doing so, it explores forum shopping considerations in general, the conventional wisdom regarding litigating in federal versus state court, and the empirical data regarding the odds of winning in state versus federal court.

August 26, 2020 in Current Affairs, Scholarship | Permalink | Comments (0)

Tuesday, August 25, 2020

Zettler, Berman & Parasidis on Drug and Vaccine Development and Access

Patricia Zettler, Micah Berman & Efthimios Parasidis have posted to SSRN Drug and Vaccine Development and Access.  The abstract provides:

This Chapter explains how drugs and vaccines for COVID-19 can reach the market in the United States. As is always true, drug and vaccine manufacturers may seek U.S. Food and Drug Administration (FDA) approval of their products via traditional approval mechanisms and drug manufacturers may offer pre-approval access under the expanded access or right to try pathways. In a public health emergency like COVID-19, an additional mechanism is also available: the Emergency Use Authorization (EUA) pathway. This Chapter (1) assesses how FDA has used its EUA authorities for COVID-19 drugs thus far, (2) considers how FDA has balanced the need for robust evidence of safety and effectiveness for COVID-19 pharmaceuticals against the urgent need to speed patients’ access amid the clinical and political realities of the pandemic, and (3) highlights considerations specific to vaccines should FDA be faced with a request to issue an EUA for a COVID-19 vaccine. The Chapter concludes with recommendations for policymakers and regulators at the federal and state levels. The recommendations aim to improve public understanding of the regulatory process for COVID-19 drugs and vaccines, protect scientific decision making from undue political pressure, and ensure that manufacturers develop robust evidence of safety and effectiveness—and ultimately safe and effective COVID-19 countermeasures.

This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

August 25, 2020 in Current Affairs, Scholarship | Permalink | Comments (0)

Monday, August 24, 2020

PA: COVID-19, Fall Sports, and Liability Insurance

On Friday, the Pennsylvania Interscholastic Athletic Association (PIAA) voted, via Zoom, to hold the fall sports season in Pennsylvania.  The next step is that each school district will vote regarding whether to participate.  PIAA has an insurance policy covering all schools, paid out of the schools' dues to PIAA.  One problem is that the insurance does not cover communicable and viral diseases.  Adding that coverage is cost prohibitive.  This may weigh on schools boards as they wrestle with the decision.  PennLive has the story.  

August 24, 2020 in Current Affairs | Permalink | Comments (0)

Friday, August 21, 2020

Burch & Williams on Judicial Adjuncts in MDLs

Elizabeth Chamblee Burch & Margaret Williams have posted to SSRN Judicial Adjuncts in Multidistrict Litigation.   The abstract provides:

Peeking under the tent of our nation’s largest and often most impactful cases — like opioids and pelvic mesh — reveals that judges often act like ringmasters: they delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some see this as a plus. In 2019, the American Bar Association joined a chorus of proponents urging courts to outsource even more or risk undermining Rule 1’s goal of achieving a “just, speedy, and inexpensive determination.” Critics, however, contend that delegating judicial power, especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs.

We wade into the controversy to offer both quantitative and qualitative evidence. By constructing an original dataset of 92 multidistrict products-liability proceedings centralized over 14 years, we introduce the first taxonomy of the diverse array of adjuncts working within them. Testing their effects with a multivariate analysis, we found that proceedings with special masters lasted 66% longer than those without, and appointing any kind of adjunct meant that the proceeding was 47% less likely to end. Not only did justice take longer, it cost more: 74% of the adjuncts were not magistrate judges, meaning that the parties paid them. And plaintiffs alone bore all costs in 54% of those appointments.

Digging deeper, we then interviewed some of the lawyers, judges, and adjuncts who participated in these proceedings. Attorneys’ experiences moved scholars’ longstanding concerns from law-review pages to real life: rather than improving justice, some adjuncts cajole parties through off-the-record discussions; repeat players on all sides thrive through symbiotic sponsorship; and plaintiffs are left playing the lawyer lottery, for their outcomes may depend more on whether they picked an attorney with the inside track than their suit’s merits. Collectively, our findings support existing reservations about allocating judicial power to those in the private sector.

August 21, 2020 in Scholarship | Permalink | Comments (0)

Thursday, August 20, 2020

Avraham, Baker & Sebok on the Anatomy of Consumer Legal Funding

Ronen Avraham, Lynn Baker & Tony Sebok have posted to SSRN The Anatomy of Consumer Legal Funding.  The abstract provides:

Litigant Third-Party Funding (LTPF), where financial companies advance money on a non-recourse basis to individual plaintiffs, is a growing and increasingly controversial industry in the U.S. This funding made headlines during the NFL concussion litigation with more than 1,000 players reported to have received such advances and with class counsel raising concerns of “predatory lending” with the Court. Policymakers and scholars echo these concerns as they call for regulation of the industry to protect vulnerable consumers. Any regulations, however, should be based on systematic data rather than good intentions or isolated anecdotes. But to date there has been almost no empirical research on the actual practices of the industry. This Article begins to fill that void.

Using a unique data set from one of the largest consumer litigation financing firms in the U.S. (“Funder”), we are the first to explore the anatomy of pre-settlement litigant finance in mass tort cases, such as the NFL class action. We are also the first to examine general post-settlement litigant finance in the U.S., which is the type of funding many NFL players were reported to have obtained. Our comprehensive data set includes approximately 225,593 requests for funding from 2001 throughout 2016.

With respect to pre-settlement funding, we find that the Funder makes an annual median gross profit of 55% from Mass Tort claims (compared with 60% from Motor Vehicle claims, our control group). We also find that the Funder includes complicated terms in their contracts that make it extremely difficult for clients to understand the actual interest rate they will be eventually be charged. We believe lawmakers should regulate these contracts, banning any unnecessarily complicated provisions and requiring that the effective annual interest rate and total amount due be straightforwardly disclosed.

With respect to post-settlement funding, we find that the effective annual interest rate charged and the profit to the Funder are even greater than for post-settlement fundings – 68% compared to 60% for Motor Vehicle claims. This is striking given that post-settlement fundings present virtually no risk to the Funder. Indeed we find that the rate of default in post-settlement cases is close to zero, which means that this category of advance is “non-recourse” on paper but not on the ground. We therefore recommend that funding in post-settlement cases should be subject to consumer protections similar to those usury laws provide for ordinary loans.

August 20, 2020 in Scholarship | Permalink | Comments (0)

Tuesday, August 18, 2020

Op-Ed: Capers, Goldberg & Zipursky on Reforming Police Liability at the State Level

At The Washington Post, Bennett Capers, John Goldberg & Ben Zipursky explain that reforming police liability does not necessarily take an act of Congress.

August 18, 2020 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, August 17, 2020

Bohrer on Steering Away from Self-Interest

Bob Bohrer has posted to SSRN Crisis and Cultural Evolution:  Steering the Next Normal from Self-Interest to Concern and Fairness.  The abstract provides:

This essay examines the current time of crisis and offers a vision of the way in which our society and our law can evolve in response. Crises of this scale are evolution-forcing events and I argue that the current moment can move us towards a fundamentally different vision of law and justice. It is the first essay or article to show that the autonomous pursuit of self-interest was a common assumption or value in the major intellectual forces of the twentieth century: classical free market economics, behavioral economics, and sociobiology, as well as in the competing visions of a just society of John Rawls and Robert Nozick. After introducing the alternative normative frameworks of caring developed by Carol Gilligan and of concern developed by Leslie Bender, I show how the common law of torts and contracts embraced self-interest as a value and then how tort and contract law could embrace the values of concern and fairness. I conclude that the danger of a culture that values the autonomous pursuit of self-interest above all else has been exposed by our current crisis and that an evolution towards a cultural regard for concern and fairness is a must.

August 17, 2020 in Scholarship | Permalink | Comments (0)

Friday, August 14, 2020

JOTWELL Torts: Simons on Abraham & White on Conceptualizing Tort Law

At JOTWELL, Ken Simons reviews Ken Abraham and Ted White's Conceptualizing Tort Law:  The Continuous (and Continuing) Struggle.

August 14, 2020 in Scholarship, Weblogs | Permalink | Comments (0)

Thursday, August 13, 2020

JOTWELL Torts: Bublick on Twerski on Consumer Expectations Versus Risk-Utility

At JOTWELL, Ellie Bublick reviews Aaron Twerski's An Essay on the Quieting of Products Liability Law.

August 13, 2020 in Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, August 12, 2020

Lytton: Against COVID-19 Lawsuit Immunity

Tuesday, August 11, 2020

TN: Special Session on COVID-19 Immunity

Tennessee started a special session yesterday, primarily over COVID-19 immunity.  Negotiations broke down in June over whether to make the legislation retroactive to March.

Gov. Lee indicated during a press conference last week that the impasse had been resolved. As written, the bill does not appear to provide retroactive protection for the early months of the health crisis. The change in Tennessee tort law would take effect Aug. 3, and expire July 1, 2022.

As introduced, the measure would grant immunity from “civil liability for loss, damages, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence of gross negligence or willful misconduct.”

WMOT 89.5 has the story.

August 11, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, August 7, 2020

NJ: Plaintiffs' Talc Experts May Testify Against J&J; Cases Reinstated

The New Jersey Appellate Division reinstated two suits linking Johnson & Johnson's talc products to ovarian cancer.  A trial judge had disqualified the plaintiffs' experts in those cases based on a 2018 ruling in an Accutane case.  The Appellate Division, however, found that the judge substituted his own opinions of the experts' arguments for the scientific community's.  The ruling ends a multi-year stay on around 800 similar suits in Atlantic County.  Charles Toutant of the New Jersey Law Journal, via George Conk, has the story.

August 7, 2020 in Experts & Science | Permalink | Comments (0)

Tuesday, August 4, 2020

Dillbary, Metcalf & Stoddard on Group Causation Theories

Shahar Dillbary, Cherie Metcalf & Brock Stoddard have posted to SSRN Incentivized Torts:  An Empirical Analysis.  The abstract provides:

Courts and scholars assume that group causation theories (e.g., concerted action) deter wrongdoers. This article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief, data from over 200 subjects shows that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. Surprisingly, we find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These findings are consistent across a series of robustness checks, including both regression analysis and non-parametric tests.

We also test courts’ and scholarly insistence that the but-for test fails in cases subject to group causation. We use a novel experimental design that allows us to test whether, and to what extent, each individual’s decision to engage in a tortious activity is influenced by the decisions of others. Upending conventional belief, we find strong evidence that the but-for test operates in group causation settings (e.g. concurrent causes). Moreover, in our experiments, subjects’ reliance on but-for causation produced the very tort that group liability attempted to discourage.

A major function of liability in torts, criminal law and other areas of the law is to deter actors from engaging in socially undesirable activities. The same is said about doctrines that result in group liability. Our empirical results challenge this basic logic.

August 4, 2020 in Scholarship | Permalink | Comments (0)

Monday, August 3, 2020

Chamallas on Race and Tort Law

Martha Chamallas has posted to SSRN Race and Tort Law.  The abstract provides:

Although Richard Delgado published the first critique of tort law from a critical race perspective in 1982, the role of race remains undertheorized in torts scholarship and torts theory, taking a back seat to the dominant approaches that rarely mention race or other social identities. This leave the misimpression that tort law is race-neutral and bears little connection to constitutional or civil rights law, where issues of racial justice are more frequently analyzed and debated.

This chapter contests that conventional wisdom and demonstrates that the shape of contemporary tort law has been affected by the social identities of the parties and cultural views on race and ethnicity. The significance of race is not confined to a particular doctrinal area but crops up in intentional tort, negligence and strict liability cases and spills over into debates about the proper measure of damages. It enters tort law through a variety of pathways, sometimes explicitly, but more often the influence of race is beneath the surface and can be gleaned only by looking closely at judicial rhetoric or at implicitly biased assumptions relied on by judges and juries.

This overview of the contemporary “race and torts” legal landscape borrows frames from critical race and interdisciplinary scholarship to organize the key cases, issues and debates into four, somewhat overlapping categories: (1) racial discrimination, harassment and insult; (2) stereotyping and racialized contexts; (3) racial devaluation; and (4) racially disparate effects. The portrait that emerges is of a flawed system that tends to reproduce rather than ameliorate racialized harms, while never quite losing its potential to change course and advance racial justice.

August 3, 2020 in Scholarship | Permalink | Comments (0)