TortsProf Blog

3M Agrees to Settle Earplug Cases for $6B

3M has agreed to pay approximately $6 billion to settle lawsuits brought by servicemembers who used earplugs supplied by the company.  Plaintiffs alleged the earplugs were defective and they suffered hearing damage as a result.  The cases were consolidated as an MDL in Florida, and plaintiffs have won 10 of the 16 trials so far.  3M reached the agreement after failing to have the cases moved to bankruptcy court earlier this year.

There are approximately 240,000 people expected to be eligible for the settlement; 98% of them must agree to accept the settlement or 3M will not be bound by it.  Payments will be made from 2023 through 2029, and $1 billion will be in the form of 3M stock.  3M shares have gone up after the settlement was announced; some analysts had estimated 3M's potential liability at $10 billion.  Brendan Pierson at Reuters has the story.

Yesterday Judge M. Casey Rogers ordered plaintiffs' lawyers to disclose outside funding deals, indicating concern about third-party litigation funding.  Emily Siegel at Bloomberg has the story.

Bublick on Posner and Mathias v. Accor

Ellie Bublick has posted to SSRN Mathias v. Accor Economy Lodging:  Judge Richard A. Posner's Message and Method on Punitive Damages.  The abstract provides:

Judge Richard Posner’s famous opinion in Mathias v. Accor tells a powerful story. In a case involving the tiny harms inflicted by bed bugs, Mathias argues that courts’ proportionality analysis should measure punitive damages awards against the wrongfulness of defendant’s conduct and need for deterrence, not against the amount of compensatory damages awarded in the case. Judge Posner raised his powerful critique of the punitive damages standard, in poetic fashion, shortly after the United States Supreme Court had decided State Farm v. Campbell—a key moment in the punitive damages discourse. In this book chapter, Professor Bublick reveals another, more important, lesson of the Mathias opinion that has been obscured from view. Once readers understand a fact that was (deliberately?) misstated, the Mathias opinion becomes more deeply telling and instructive about Judge Posner’s pragmatic method of review and his commitment to commercial fair dealing as the site at which economic and moral perspectives merge.

Torts Art

Blake Wells sells law-related art at Term of Art Co.  His torts prints are here.  Palsgraf and Byrne v. Boadle are by Christian Ceci.

Innsbruck Conference on Medical Liability

The University of Innsbruck and the European Group on Tort Law are holding a conference on Medical Liability in the Digital Age on September 28. 

Programme
10:00 Opening of the conference
            *Bernhard A. Koch (University of Innsbruck):
            Introduction
            *Ewa Bagińska (University of Gdańsk):
             A Call for Risk-based Liability for Adverse Effects of Advance Therapy
             Medicinal Products – Hospital Exemption (ATMP-HE)
             *Ken Oliphant (University of Bristol):
             Liability for Black-Box Medicine: Fault, Risk or Social Solidarity?
12:00 Lunch break
13:00 *Israel Gilead (The Hebrew University of Jerusalem):
            Extending Fault-based Medical Liability by Notions of Enhanced Protection
            of Autonomy and of ‘Evidential Loss’
            *Giovanni Comandé (Scuola Universitaria Superiore Pisa):
            AI and Health Care Related Liability Between Old and New Paradigms
14:45 Coffee break
15:15 *Christopher Robinette (Southwestern Law School):
            A Restatement of the Law of Medical Liability
            Speakers and other members of the European Group on Tort Law:
            Round Table:
            Medical Liability in the Digital Age – Need for Reconsideration?
17:00 End of conference

Times are local.  The event is hybrid and free of charge; please register here: https://www.uibk.ac.at/fz-medizinrecht/fz-medr/medical-liability-in-the-digital-age.html

The flyer is here:  Download Medical Liability in the Digital Age

Bell on Aggressive Police Actions to Dislodge Intruders

Bernie Bell has posted to SSRN Aggressive Police Actions to Dislodge Intruders and Competing Takings Clause and Fourth Amendment Regimes.  The abstract provides:

This article examines the potential overlap between the currently invigorated “regulatory takings” regime, extended most recently in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), and the Fourth Amendment regime governing searches and seizures. The two regimes suggest strikingly divergent approaches to claims for recompense arising out of law enforcement destruction of owners’ residential or commercial premises in the course of dislodging an intruder. Typically, most courts have resisted recognizing such destruction as a “taking,” even though such police responses to intruders may render the premises uninhabitable or unusable — a far more serious and potentially long-term frustration of investment-backed expectations than many actions that undoubtedly qualify as takings. The result in most jurisdictions has been judicial refusal to recognize potential liability for such damage to residential and commercial premises, with the civil rights or torts actions grounded in search-and-seizure law rarely mentioned.

Takings Clause doctrine provides a categorical entitlement to “just compensation” once a taking has occurred, without considering the reasonableness of law enforcement officials’ actions. By contrast, the ex ante or ex post Fourth-Amendment-based protection of property turn on the reasonableness of law enforcement officials’ actions — the government will be liable or denied authorization to conduct only unreasonable searches and seizures. The interest invaded in cases involving police dislodging of intruders is not the property owner’s right to possess and exclude, which lie at the heart of regulatory takings doctrine — indeed in most cases police restore those rights by expelling the intruder. Rather the property owner solely suffers property damage, and such harms, divorced from infringement upon the rights to possess and exclude, are subject to causes of action based on fault, not mere damage. Such fault-based causes of action include standard negligence causes of action for property damage, nuisance causes of action, and non-tort causes of action alleging “waste.”

The article assesses the relative merits of the competing Takings Clause and Fourth Amendment Clause approaches, finding both problematic. It then suggests self-help as the most appropriate means to ensure that property owners recoup losses due to damage to their premises in “intruder” situations. Such self-help can, and may to some extent already, be accomplished through the mechanism of insurance. Here, the paper takes it cue from the “economic loss” doctrine in torts. However, it is unclear whether standard insurance policies cover losses resulting from police responses to intruders. The article suggests that jurisdictions use their regulatory powers to preclude insurance companies from selling policies that exclude coverage of such claims. Ultimately, a combination of pooling risk among property owners through the mechanism of insurance, combined with Fourth-Amendment-based (or tort) liability based on unreasonable law enforcement conduct provides a better approach than that promised by extending the takings regime to include damage to property necessitated by law enforcement efforts to dislodge intruders.

Tylenol MDL

At Barron's, Josh Nathan-Kazis has an article about the MDL in the Southern District of New York of cases alleging that Tylenol taken by pregnant mothers causes ASD and ADHD in their children.  Plaintiffs in these cases face a number of high hurdles such as causation and preemption.  The cases have survived several preliminary motions and are approaching a Daubert hearing.  I was surprised by the number of studies finding an association between the drug and the conditions, but of course that does not mean causation exists.  Kenvue, the defendant, was spun off from Johnson & Johnson, and a stock swap has just concluded.  Liability for another mass tort, the talc litigation, stayed with J&J in an attempt to make Kenvue stock more appealing to investors.  The article (behind a paywall) is here.

Abraham & White on the Offensiveness Torts

Ken Abraham & Ted White have posted to SSRN The Offensiveness Torts.  The abstract provides:

Three established torts require the defendant’s behavior to be “offensive” or “highly offensive” in order to be actionable: offensive battery, public disclosure of true private facts, and intrusion on seclusion. Although what links these “offensiveness” torts together has not been recognized before, this Article demonstrates that they occupy a sub-category of tort liability that is coherent, insight-generating, and useful. The torts developed at different times and in a sense for different reasons, but all three rest on the same principle: the idea that individual autonomy involves not only inviolable bodily space, but also inviolable private and informational space. What counts as actionable wrongdoing for these torts depends on the cultural context, because what is considered offensive conduct may vary, as cultural conditions change. The typical victim (or observer) of one of these torts must plausibly have the reaction “How dare you?” for the offensiveness element of the tort to be satisfied. That is what links these three superficially disparate torts together, and warrants understanding them together, as protections against invasions of the different forms of inviolable space that are a core feature of every individual’s autonomy.

Geistfeld on Unifying Principles for Pluralist Tort Adjudication

Mark Geistfeld has posted to SSRN Unifying Principles Within Pluralist Tort Adjudication.  The abstract provides:

The ongoing fact of pluralist tort adjudication calls into serious question whether tort law plausibly coheres into a single integrated moral justification such as welfarism or Kantian right. A healthy political society values diverse viewpoints and their associated moral theories. Recognizing as much, Jane Stapleton and numerous other tort scholars have concluded that tort law is committed to pluralism as a substantive matter. Their reasoning seems incontrovertible: tort adjudication has always been conducted in terms of incompletely theorized mid-level principles such as reasonableness or fairness that can be justified by a plurality of values. Attempts to interpret tort law in terms of a single integrated justification miss the mark on this view, turning them into “grand theories” that are practically useless for the bench and bar.

Though otherwise valuable, substantive pluralism is problematic in the context of adjudication. If tort law must always be formulated to protect a plurality of competing values, it could not justify judicial decision-making in hard cases, nor could it meaningfully protect individual rights or otherwise provide individuals with requisite guidance on how they should behave when pluralist values conflict. Rather than entailing a commitment to pluralism as the substantive rationale for tort law, pluralist adjudication is more plausibly characterized as a dynamic process of constructive interpretation. As I will try to demonstrate, pluralist tort adjudication that proceeds on the basis of incompletely theorized agreements embodies unifying principles that can satisfy the demands of law as integrity.

Most obviously, pluralist tort adjudication is normatively coherent when conducted in the context of an overlapping consensus of the competing pluralist values. To identify an overlapping consensus, one must apply the different foundationalist moral principles that plausibly describe tort law in order to determine whether their demands conflict for the class of cases under consideration. Doing so is not merely a pedantic exercise. When cases are situated within an overlapping consensus, doctrinal analysis is considerably sharpened by eschewing mid-level theorizing in favor of the more fully theorized foundationalist moral principle best fitted for addressing the issue at hand. Wide swaths of tort law find justification within an overlapping consensus, an important point that tort scholars have largely overlooked.

A focus on this attribute of tort law also reveals important classes of cases in which pluralist values conflict. Within this space of hard cases, there is an overlapping consensus concerning the reasonable structure of pluralist adjudication. Litigants have an institutional right to be treated equally under the law, which precludes judges from resolving hard cases by simply invoking their preferred value systems when doing so would conflict with other pluralist values. The common law implements this requirement of equal treatment with its characteristic mode of judicial decision-making based on analogical reasoning—treating like cases alike. Analogical reasoning depends on unifying properties for categorizing cases that make pluralist tort adjudication a dynamic process for rendering tort law normatively coherent, thereby implementing law as integrity. Throughout this entire process, monistic interpretive theories are integral for developing the concepts and doctrines of tort law.

Goudkamp on New Torts

James Goudkamp has posted to SSRN New Torts.  The abstract provides:

One of the most enduring themes regarding tort law is that it is a dynamic institution that adapts in response to evolving social conditions and emerging forms of wrongdoing. Thus, centuries ago Pratt LCJ said that ‘torts are infinitely various, not limited or confined’. In the current age, Hoffmann J wrote that tort law ‘is not static’ and added ‘that new forms of tort may develop’. Torts scholars agree. For example, John Fleming observed that:‘tortious liability is constantly expanding and there is ample evidence that a plaintiff’s claim is not necessarily prejudiced because he is unable to find a specific label for the wrong of which he complains. New and innominate torts have been constantly emerging in the long course of our history and the courts have shown no inclination at any stage to disclaim their creative functions, if considerations of policy pointed to the need for recognising a new cause of action’.

Although the courts have long been in the business of updating the list of civil wrongs, the process by which this occurs has received scant attention and certainly much less than it deserves. There is, of course, a large literature that considers whether particular torts should be welcomed into the fold. Thus, a substantial body of learning exists on whether spoilation of evidence and invasion of privacy should be recognised as torts. But this literature does not grapple with the process by which the courts create torts. Accordingly, this chapter’s purpose is to cast some light on that topic. Although legislatures can and often do create torts too, the recognition of new torts by the courts involves different issues, largely because of the restrictions to which the courts but not Parliament are subject. This chapter’s focus is on the creation of torts at common law.

In terms of the structure of the chapter, it begins by examining how new torts can be identified (Section II). As we will see, it is often unclear whether one is dealing with a novel tort or an extension to an extant one. Attention is then turned to a range of instances where the courts have established new torts or declined to do so (Section III). Thereafter, regard is had to a sample of reasons that the courts have given both in favour of and against establishing new torts (Section IV). A wide range of reasons have been offered most of which are, as we will see, unconvincing. The final substantive part of the chapter offers some short observations regarding the other end of tort law’s lifecycle, namely, the process by which torts die (Section V).

 

Heymann on Trolley Problems, Private Necessity, and the Duty of Rescue

Laura Heymann has posted to SSRN Trolley Problems, Private Necessity, and the Duty of Rescue.  The abstract provides:

Laidlaw v. Sage is generally, at best, an oddity in Torts casebooks today. A case that captured the imagination of New York newspaper readers at the time, Laidlaw involved an explosion that, William Laidlaw argued, the wealthy Russell Sage survived only because, at the last moment, he pulled Laidlaw in front of him to absorb the brunt of the blast. As taught in Torts classrooms, Laidlaw is either a case about the intent requirement for battery or a case about causation. But the case, assuming the plaintiff’s story was true, also provides an interesting window into what would seem to be contradictory tort doctrines: the defense of private necessity and the lack of any duty to rescue. When one’s property is used without prior consent in an emergency situation, one is essentially being made an unwilling rescuer, even though one would not normally, absent a preexisting duty, be compelled to contribute to a rescue at all. This confluence of doctrines because even more heightened when one’s bodily integrity is at stake, such as in the classic trolley problem, where one individual is, essentially, forced to become an involuntary rescuer of five others by giving up their life. And while the trolley problem has been criticized on the basis of its departure from reality, the proliferation of autonomous vehicles will increasingly force us to determine how these tradeoffs should be made.