TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, September 29, 2020

The 2021 Prosser Award Honoree is Judge Jack Weinstein


The AALS Torts and Compensation Systems Section has announced that the 2021 Prosser Award honoree is Judge Jack Weinstein.  Judge Weinstein served as a federal judge in Brooklyn for 53 years, retiring earlier this year at the age of 98.  The New York Times covered his retirement here.  John Goldberg, who clerked for Judge Weinstein in the early 1990s, has the following praise:

The bestowal of the Prosser Award on Jack B. Weinstein is an entirely fitting tribute. No one in modern American law has played a more important role in pressing lawyers, fellow judges, and law professors to reconsider the potential of tort law to contribute to a just polity. In presiding fairly and firmly over asbestos, Agent Orange, DES, and many other complex litigations, Judge Weinstein created and defined the field of mass torts. Along the way, he has provided deeply learned treatments of topics ranging from causation to punitive damages. Most importantly, everything he has done in the world of torts has been guided by an unrelenting drive to help ordinary people. To quote from a previously published tribute: “The most important things to say about [Judge Weinstein] are the most obvious. He is superhuman—learned and wise beyond measure, eternally curious, impossibly energetic, deeply compassionate, fiercely determined, and completely charming. He has also been, and still is, an extraordinary public servant. As a lawyer, government official, judge, and legal scholar, he has devoted his life to the well-being of others, especially the vulnerable. Simply put, there are precious few who can claim to have done as much, and lived as well, as Jack Weinstein.”  


                John C. P. Goldberg

                Deputy Dean and Carter Professor of General Jurisprudence

                Harvard Law School

                Law Clerk to Judge Weinstein 1991-92

September 29, 2020 | Permalink | Comments (0)

Sunday, September 27, 2020

Czaczkes, Baker & Witt: Liability Insurance Coverage is a Reason to Reject COVID-19 Immunity

Yale undergraduate Josh Czaczkes, Tom Baker, & John Witt have just finished a really interesting research project.  Using a database run by Baker at Penn, the group determined that 80% of liability policies have coverage for losses for infection by virus.  Only 20 of 100 policies had an exclusion.  Thus, COVID-19 immunity would primarily benefit large insurers and not businesses, many of which are small.  The group uses the finding to oppose immunity legislation.  Their post is at Balkinization

Moreover, the early cases are being won by defendants.  See here and here.  I have spoken to several plaintiffs' lawyers over the last few weeks, and they all say the same thing about COVID-19 cases.  They are very wary of them, and would only take such a case under limited conditions.  Specifically, I have heard from more than one firm that the injury would have to be death before it would be worth considering.  I think immunity is unnecessary. 

September 27, 2020 in Current Affairs, Scholarship | Permalink | Comments (0)

Friday, September 25, 2020

Perry on COVID-19 Liability

Ronen Perry has posted to SSRN Who Should Be Liable for the COVID-19 Pandemic?.  The abstract provides:

The Article systematically and critically evaluates the potential liability of various “suspects” for the physical, emotional, and economic losses arising from the COVID-19 pandemic: the country-of-origin (the People’s Republic of China), international organizations (particularly the World Health Organization), federal, state, and local governments and officers, businesses, and healthcare providers. It concludes that existing legal frameworks fail to provide an appropriate solution for victims, primarily because each of the potential defendants can easily evade liability. The Article then proposes a new hybrid (international-domestic) regime, inspired by the international framework for the compensation of victims of nuclear incidents and by the September 11th Victim Compensation Fund.

September 25, 2020 in Scholarship | Permalink | Comments (0)

Tuesday, September 22, 2020

Russell on Frivolous Defenses

Thomas Russell has posted to SSRN Frivolous Defenses.  The abstract provides:

This article is about civil procedure, torts, insurance, litigation, and professional ethics. This is an empirical piece with data drawn from a sample of 355 answers to 298 complaints in car crash lawsuits to identify various ways that insurance defense lawyers evade the rules of civil procedure and, frankly, act unprofessionally.

The empirical center of this piece examines 355 answers in car crash personal injury cases in Colorado’s district courts. First, I situate these cases within dispute pyramid elements including the total number of miles-traveled within Colorado and also with respect to the volume of civil litigation.

The piece engages several articles that Stanford Law Professor Nora Freeman Engstrom has written about the plaintiffs’ bar. This article is the opening article in a multiple-piece conversation with her. I show how insurance defense mill lawyers ignore the rules of civil procedure and the Code of Professional Conduct.

Next, I examine the answers of what I term insurance defense mill attorneys. Using my sample of 355 answers and 298 complaints, I examine the defense attorney’s departure from the Colorado Rules of Civil Procedure especially Rule 8. In particular, I count and analyze lawyers use of the claims that they need not answer because an averment:

1) calls for a legal conclusion;

2) is directed at a co-defendant; or

3) that a statute or document "speaks for itself."

I generally discuss the failure to investigate claims before answering, which violates Rule 11 and the Code of Professional Conduct.

Third, the title derives from the last empirical section, which examines the pleading of lists of so-called “affirmative defenses.” I show that on average, each defense attorney includes nine items within a list of defenses. Few are true affirmative defenses. For 90 percent of the lists of defenses, there is no factual support whatsoever.

The piece has some humor, too.

September 22, 2020 in Scholarship | Permalink | Comments (4)

Monday, September 21, 2020

Yale Law Journal Submission Deadline is Wednesday

The Yale Law Journal has announced that the submission deadline for articles and essays is this Wednesday, September.

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

Wednesday, September 16, 2020

Berman on Tobacco Litigation and E-Cigarettes

Micah Berman has posted to SSRN Tobacco Litigation, E-Cigarettes, and the Cigarette Endgame.  The abstract provides:

Among his many contributions to the field of public health law, Professor Richard Daynard is perhaps best known for (a) advancing the idea that affirmative litigation, particularly against the tobacco industry, can serve as an effective public health tool, (b) introducing the discussion of an “endgame,” in which the commercial sale of cigarettes—the most deadly form of tobacco use—is phased out. This article unites these two topics and analyzes the potential for affirmative litigation to hasten the end of commercial cigarette sales.

In recent years, the major tobacco companies have suggested that they support moving towards a “smoke-free world,” with non-combustible nicotine products such as e-cigarettes gradually replacing more harmful cigarette smoking. Though this rhetoric is deeply cynical—these same companies continue to spend heavily to promote their cigarette brands—it may nonetheless create a window of opportunity for litigants. Past litigation against tobacco companies has foundered on the absence of a “reasonable alternative design” for cigarettes. Today, the tobacco companies’ own statements can be used to show the availability of such alternatives. More importantly, now-public documents from the tobacco industry’s archives help establish the case for treating e-cigarettes as a “reasonable alternative design” for cigarettes. These documents show that the major tobacco companies developed the essential components of e-cigarette technology decades ago, but they chose not to commercialize these products because they feared they would prove to be viable alternatives to cigarettes.

This article reviews how the introduction of e-cigarettes may reinvigorate products liability litigation against the manufacturers of conventional cigarettes. Building on the work of Professor Daynard, it also considers how these lawsuits, even if ultimately unsuccessful in court, might nonetheless benefit public health by pressuring the tobacco industry to live up to its public statements and by catalyzing legislative efforts to phase out the sale of cigarettes.

September 16, 2020 in Scholarship | Permalink | Comments (0)

Monday, September 14, 2020

Geistfeld: Principles of Products Liability, Third Edition

Mark Geistfeld has posted to SSRN two chapters from Principles of Products Liability (3rd ed.).  The abstract provides:

Two chapters from the third edition of Principles of Products Liability (Foundation Press 2020), a state-of-the-art study of products liability. The book shows how ancient laws have evolved into liability rules capable of solving the safety questions raised by new or emerging technologies, ranging from autonomous vehicles to the Amazon online marketplace. Identifying a development that has been largely ignored by scholars, the book shows how the rule of strict products liability from the last century has been transformed into a more comprehensive liability regime — “strict products liability 2.0” — that incorporates the risk-utility test into the consumer-expectations framework of strict products liability. Across the important issues, this more comprehensive formulation of the implied warranty sharpens the inquiry about what’s at stake, supplying strong rationales for a host of otherwise contentious doctrines — from federal preemption to the relevance of scientific evidence in toxic-tort cases. The analysis throughout relies on extended discussion of the black-letter rules and associated controversies in the case law, providing a solid foundation for understanding and incisively analyzing this vitally important area of the law.

September 14, 2020 in Books, Products Liability | Permalink | Comments (0)

Friday, September 11, 2020

Borghetti, Fairgrieve & Rott on a Comparative Review of Vaccine Remedies

Jean-Sébastien Borghetti, Duncan Fairgrieve & Peter Rott have posted to SSRN Remedies for Damage Caused by Vaccines:  A Comparative Study of Four European Legal Systems.  The abstract provides:

Compensation for damage caused to patients by vaccination is an increasingly prominent issue given the important public health consideration of ensuring the highest possible take-up of vaccination. This study explores the approach to vaccine damage cases in four different European countries (France, Germany, Italy and the UK), examining the variety of different mechanisms for providing redress, including specific compensation funds, social security systems, the operation of orthodox regimes of tort law and product liability, as well as in certain jurisdictions bespoke legislation for healthcare products or pharmaceuticals. The authors then go on to examine the recent case law on this topic at a Member State and European level, focusing particularly on issues relating to the notion of defect and that of causation in vaccine damage cases.

September 11, 2020 in Scholarship | Permalink | Comments (0)

Wednesday, September 9, 2020

COVID-19 Cruise Ship Cases Dismissed for Problems with Causation, Injury

At, Amanda Bronstad has a piece covering the dismissal, without prejudice, of cases filed by passengers alleging they caught COVID-19 on a cruise ship.  Two different federal judges in the Central District of California dismissed cases without prejudice from passengers alleging they actually caught COVID-19.  An earlier ruling dismissed filings alleging only fear of catching COVID-19.  Both judges focused on causation and injury, though the judges differed a bit on what would count as an injury, at least at the 12(b)(6) stage.  Causation seemed to be the biggest problem for most of the cases, and it is unclear if the plaintiffs will be able to plead sufficient new facts to survive dismissal.  If causation is difficult to establish when on a cruise ship for weeks, it will generally be much harder if allegations are brought against owners of grocery stores, gyms, etc.  It will be interesting to watch as different factual variations appear.

More coverage at ABA Journal.

September 9, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, September 8, 2020

Feinman on the Restatement of the Law, Liability Insurance

Jay Feinman has posted to SSRN A User's Guide to the Restatement of the Law, Liability Insurance.  The abstract provides:

At its 2018 Annual Meeting, The American Law Institute completed nearly a decade’s worth of work on the Restatement of the Law, Liability Insurance. The Restatement’s approval was deferred for a year from the 2017 Annual Meeting, largely because of opposition from insurance industry interests. The Restatement attracted unusual attention from interests outside the normal ALI process, in a way that can be fairly characterized as political, in the non-pejorative sense that it involves the authoritative allocation of values.

Lawyers and judges routinely look to the ALI’s Restatements of the Law as reference works for the state of the law and for arguments and analysis about the direction the law should go. Yet the controversy reflected in the complex intellectual and political history of the RLLI is likely to continue following its final adoption, and the issues raised by the controversy about the RLLI frames its use by lawyers and judges in interesting ways. This article takes account of the issues raised in the drafting process to inform the use of the Restatement going forward. The criticisms of particular sections of the RLLI will be discussed as those sections are raised, argued, and applied in litigation.

But the criticism suggests that two general points need to be taken into account in using the RLLI:
• What is a Restatement?
• Whose Restatement is this?

September 8, 2020 in Scholarship | Permalink | Comments (0)

Friday, September 4, 2020

Vines & Akkermans on the Unexpected Consequences of Compensation Law

Prue Vines and Arno Akkermans have published The Unexpected Consequences of Compensation Law with Hart Publishing.  From the blurb:

This book explores the performance of compensation law in addressing the needs of the injured. Compensation procedure can be dangerous to your health and may fail to compensate without aggravation/creating other problems. This book takes a refreshing and insightful approach to the law of compensation considering, from an interdisciplinary perspective, the actual effect of compensation law on people seeking compensation. Tort law, workers’ compensation, medical law, industrial injury law and other schemes are examined and unintended consequences for injured people are considered. These include ongoing physical and mental illness, failure to rehabilitate, the impact on social security entitlements, medical care as well as the impact on those who serve – the lawyers, administrators, medical practitioners etc.  All are explored in this timely and fascinating book. The contributors include lawyers, psychologists, and medical practitioners from multiple jurisdictions including Australia, the Netherlands, Canada, Italy and the UK.

Discount Price: £56

Order online at – use the code UG6 at the checkout to get 20% off your order!

September 4, 2020 in Books, Scholarship | Permalink | Comments (0)

Thursday, September 3, 2020

Keating on Beuermann on Strict Liability

At JOTWELL Torts, Greg Keating reviews Christine Beuermann's Reconceptualising Strict Liability for the Tort of Another.

September 3, 2020 in Books, Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, September 2, 2020

Legally Speaking Ohio: Invasion of Privacy and Drug Testing

At Legally Speaking Ohio, Marianna Brown Bettman provides a thorough analysis of Lunsford v. Sterilite of Ohio, L.L.C., in which the Supreme Court of Ohio held that at-will employees have no cause of action for invasion of privacy when consenting to an employer-required direct observation method of submitting a urine sample for drug testing.

September 2, 2020 in Current Affairs, Weblogs | Permalink | Comments (0)