TortsProf Blog

Fox-Decent on the Moral Authority of Rulings

Evan Fox-Decent has posted to SSRN The Moral Authority of Rulings.  The abstract provides:

In Rights, Wrongs, and Injustices, Steve Smith argues that substantive legal rules, sanctions for breaking them, and judicial remedial orders are fundamentally distinct. A remedial order consists in a specific command addressed to a particular defendant, with the expectation that the defendant will comply voluntarily. One puzzle raised by remedial orders is why courts bother with them at all, since it seems they could simply right the wrong by skipping directly to a sanction when the relevant rule has failed to motivate. Smith suggests that practical considerations resolve the puzzle. His argument, roughly, is that it would be too costly to use public institutions to transfer property or take other action to right every judicially recognized private wrong. Were the direct imposition of sanctions costless (or of negligible cost), remedial orders would appear anachronistic and, by hypothesis, under-motivated. I suggest a complementary resolution to the puzzle. I argue that remedial orders can be understood as courts’ attempt to allow wrongdoers to redeem themselves and reassert their moral standing as equals. While remedial orders correct the injustices plaintiffs have suffered and thereby restore plaintiffs’ moral equality, they also allow wrongdoers to publicly acknowledge their transgressions and affirm their commitment to equal justice under law. This moralized account of orders sits congenially with Smith’s otherwise moralized account of private law. And importantly, on the moral account, even if the practice of issuing judicial orders were shown to be more costly than direct sanctions, there would still be reason, however defeasible, to maintain the practice.

Bublick on the Art of the Treatise

Ellie Bublick has posted to SSRN In Praise of the Treatise Writer:  Law's Special Knowledge.  The abstract provides:

What is the special knowledge that law has? In this paper, Professor Bublick lauds the work of her late colleague, tort law treatise writer Dan B. Dobbs (1932-2024).

BNSF Railway Liable in Asbestos-Related Deaths of Two in Libby, MT

Yesterday, a federal jury found that BNSF Railway is liable in the deaths of two Libby, MT residents and awarded their estates $4 million each.  The jury concluded that a spill of abestos-contaminated vermiculite in the Libby Railyard was a substantial factor in the illnesses and deaths of the pair.  Libby is known for being adjacent to a vermiculite mine operated by W.R. Grace; the mine was closed in 1990.  Grace has paid significant settlements to victims in Libby.  Another suit against the railroad for the death of a Libby resident is scheduled for federal court in Missoula next month.  News 5 Cleveland has the story.  Thanks to Louis Mowers for the tip.

Sharkey on Platform Liability and Deterrence

Cathy Sharkey has posted to SSRN The Irresistible Simplicity of Preventing Harm.  The abstract provides:

In Loomis v. Amazon.com, the California Court of Appeal confronts the most pressing products liability issue of our time: the extent to which an online marketplace is liable for injuries caused by defective products sold on its platform. In a trailblazing concurrence destined to enter the torts canon, Justice John Wiley highlights Amazon’s ability to influence the safety of the products it makes available for sale, and uses the case to remind us that the “deep structure of modern tort law” is built to “minimize the social costs of accidents.” Similarly, Justice Wiley cuts a clear path through the thicket of the economic loss rule, institutional (or vicarious) liability and punitive damages cases by following the torts lodestar: the irresistible simplicity of preventing harm.

Swan on Public Duties for the New City

Sarah Swan has posted to SSRN Public Duties for the New City.  The abstract provides:

The first job of a government is to protect its people, and, in the United States, the government ostensibly performs this job through the police. But policing in America is deeply dysfunctional, as the police not only provide inadequate protection from violent crime, but simultaneously engage in outright acts of brutality against the citizenry. As awareness of these practices has swept across the nation, legal scholars and policymakers have offered numerous reforms and remedies to help solve policing’s problems. The responses have tended to focus on the top of the legal pyramid, using the big hammers of the federal government, the Constitution of the United States, the federal remedies of Section 1983, and the qualified immunity doctrine of federal courts as the requisite tools for reform. More recently, as these efforts have faltered, scholars and policymakers have begun to explore the possibilities for change at the state and local level.

This Article, too, begins at the bottom. While the proposed fixes to the federal framework are indeed important, this Article argues that changes at the lower, foundational level of cities, local governments, and common law duties of care are equally so. Policing is, after all, a fundamentally local matter, with thousands of municipal and county governments responsible for its administration. And duties of care are the most basic articulation of the norms and obligations flowing between members of our society, shaping not just private relations, but the government-constituent relationship as well. This Article argues that attending to these roots offers an opportunity to reorient the police-citizen relationship and recast the relational norms between local government actors and their constituents more generally. In particular, this Article argues that the “public duty doctrine”—a no-duty rule that immunizes municipalities from civil liability arising from police violence and failures to protect—has contributed to a profoundly unbalanced and perverse local-constituent relationship. To reestablish just relations, localities should bear, and indeed embrace, a legally
enforceable duty of care to protect their constituents.

Such a duty would not open the liability flood gates, nor impose catastrophic expenses on cities, nor expand the already oversized footprint of policing. Such a duty would, however, achieve the usual tort goals of compensation and deterrence, significantly reduce the harms that police and other governmental actors visit on city constituents through both their action and inaction, align with corrective justice principles, enhance democratic accountability, advance the constitutional principle of equal protection, and accord with the thick conception of the city-constituent relationship that cities themselves put forward in the affirmative litigation context.

Further, implementing this duty on the ground would not be difficult. Neither courts nor legislatures need do anything at all; many cities could simply choose to not avail themselves of the public duty defense and instead accept an owed duty. Doing so would not only reorient the city-constituent relationship in a profoundly more positive way; adopting this duty would also serve cities’ broader self-interest. As cities increasingly vie for political recognition and acknowledgement as independently legitimate polities on both the domestic and international stage, this Article draws on the burgeoning sovereignty-as-responsibility literature to argue that by embracing a duty to protect, cities can advance their own status as credible, politically important actors in the wider American democratic project.

Rabin on Stand Alone Emotional Harm

Bob Rabin has posted to SSRN Stand Alone Emotional Harm:  Old Wine in New Bottles.  The abstract provides:

In their contribution to the 2023 Clifford Symposium on Tort Law and Social Policy, Professors Kenneth Abraham and G. Edward White advance the interesting thesis that the ancient tort of offensive battery, initially recognized under the writ of trespass, and later substantiated in the three iterations of the Restatement of Torts, has experience newfound popularity in its linkage to federal statutory claims of sex discrimination under Title VII of the Civil Rights Act of 1964 and constitutional deprivation of civil rights in Section 1983 cases.

In Part I of this essay, I provide a broader context on the long history of misconduct generating a claim for “offensive” behavior without physical harm. Then, in Part II, I address the many pathways of a far more expansive conception of recoverable stand-alone emotional harm that rests on cultural change in a distinctly modern-day setting. Finally, I offer some concluding observations.

Tyco Fire Products Agrees to Settle "Forever Chemicals" Lawsuit for $750M

On Friday, Tyco Fire Products, a subsidiary of Johnson Controls, announced it had reached a $750 million settlement with some U.S. public water systems.  Plaintiffs alleged that a firefighting foam manufactured by Tyco contained forever chemicals that contaminated their water supplies.  The contaminants, per- and polyfluoralkyl substances ("PFAs),:

are a class of chemicals used in thousands of consumer and commercial products, including firefighting foams, non-stick pans and stain-resistant fabrics. They have been tied to cancers and other diseases, and are often called forever chemicals because they do not easily break down in nature or the human body.

The cases have been centralized in an MDL in South Carolina.  Reuters has the story.

Bennett: Principles of the Law of Agency (2d ed.)

Howard Bennett has published Principles of the Law of Agency (2d ed.) with Bloomsbury.  The blurb provides:

The 2nd edition of this successful book provides a fully updated, succinct examination of the principles of agency law.

The book explores the rules of attribution, the rights and obligations arising within the agency relationship, the impact of agency in the fields of contract and tort, and the termination of an agent's authority. Throughout the book, full consideration is given to the issues arising under the Commercial Agents (Council Directive) Regulations 1993. The discussion is informed not only by common law authority that constantly nourishes the development of agency law principle, but also by international soft law instruments and the Restatement of the Law, Third: Agency.

Discount Price: £31.99

Order online at www.bloomsbury.com  – use the code GLR AT5 to get 20% off!

Tort Law and Social Equality Speakers Series: Koshan & Sowter on Family Violence

 On Friday, April 19 from 12pm-1:30pm (EST), Jennifer Koshan (Calgary) and Deanne Sowter (Osgoode) will speak on the tort of family violence.  The Zoom link is in the attached poster:   Download Koshan & Sowter

“The Tort of Family Violence and its Potential to Remediate the Consequences of Abuse”

 

Torts – even intentional torts – were not traditionally conceived of as a means of redressing intimate partner violence (IPV). Within the last fifty years, Canadian tort law (and related limitations laws) have evolved to allow IPV survivors to seek tort-based remedies. However, these remedies have been sought rarely and have been largely limited to existing categories of intentional torts such as assault, battery, and the intentional infliction of emotional distress. These torts do not always encompass the myriad harms sustained by survivors of IPV, particularly the harms of economic abuse and coercive control. In Ahluwalia v Ahluwalia, a 2022 family law decision, Justice Renu Mandhane responded to this gap in the law by recognizing a new tort of family violence, but her decision was overturned by the Ontario Court of Appeal in 2023. Our presentation will provide an intersectional feminist analysis of the role of tort law in providing remedies for survivors of IPV, situating tort remedies within the wider context of Canadian IPV laws as well as tort theory and critiques. This wider context raises issues about access to justice and socio-economic responses to IPV for members of marginalized groups in particular.

 

Jennifer Koshan is a Professor in the Faculty of Law and Research Excellence Chair at the University of Calgary. Jennifer’s research and teaching focus on equality and human rights, legal responses to interpersonal violence, and access to justice. With a number of colleagues across the country, she recently completed a project on Domestic Violence and Access to Justice Within and Across Multiple Legal Systems that was funded by the Social Sciences and Humanities Research Council. Research from the project includes work published here and here. Jennifer has also been working with colleagues in Nursing and Social Work at the University of Calgary on an interdisciplinary course module on gender-based violence using virtual gaming simulation. She blogs on domestic violence and other issues on ABlawg.ca, and regularly presents her research to judges, lawyers, and other academic and professional audiences. Jennifer also sits on the National Association of Women and the Law’s Violence Against Women Working Group, and regularly works with the Women’s Legal Education and Action Fund (LEAF) on its projects.

 

Deanne Sowter is a doctoral candidate and Vanier Scholar at Osgoode Hall Law School. She is also a Research Fellow with the Winkler Institute for Dispute Resolution. Deanne’s research focuses on gender-based violence, family law, and legal ethics, and it has been supported by SSHRC and several prestigious fellowships and scholarships including the Honourable Willard Z Estey Teaching Fellowship and the OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies.

 

Deanne’s work has been published in several peer-reviewed journals and it has been cited by the Supreme Court of Canada. She has taught as an Instructor at the University of Calgary and as an Adjunct Professor at Western Law. Deanne has a JD from Osgoode Hall Law School, an LLM from the University of Toronto.

Goldberg on the Need for Early Vetting in MDLs

The Federal Rules Advisory Committee is considering a new rule of civil procedure to govern MDLs.  Several years ago, the Committee issued a report estimating that approximately 20%-30% of claims in MDLs are unsupportable.  Phil Goldberg, citing specific incidents, argues that the Committee needs to address early vetting of MDL claims in the new rule.  The piece (behind a paywall) is at Law.com.

JOTWELL Torts: Sebok on Abraham & Sharkey on Insurance and Tort Theory

At JOTWELL, Tony Sebok reviews Ken Abraham & Cathy Sharkey's The Glaring Gap in Tort Theory.

Sharkey on Products Liability and AI

Cathy Sharkey has posted to SSRN A Products Liability Framework for AI.  The abstract provides:

A products liability framework, drawing inspiration from the regulation of FDA-approved medical products—which includes federal regulation as well as products liability—holds great promise for tackling many of the challenges artificial intelligence (AI) poses. Notwithstanding the new challenges that sophisticated AI technologies pose, products liability provides a conceptual framework capable of responding to the learning and iterative aspects of these technologies. Moreover, this framework provides a robust model of the feedback loop between tort liability and regulation.

The regulation of medical products provides an instructive point of departure. The FDA has recognized the need to revise its traditional paradigm for medical device regulation to fit adaptive AI/Machine Learning (ML) technologies, which enable continuous improvements and modifications to devices based on information gathered during use. AI/ML technologies should hasten an even more significant regulatory paradigm shift at the FDA away from a model that puts most of its emphasis (and resources) on ex ante premarket approval to one that highlights ongoing postmarket surveillance. As such a model takes form, tort (products) liability should continue to play a significant information-production and deterrence role, especially during the transition period before a new ex post regulatory framework is established.

Sharkey & Kenny on the Role of the FDA

Cathy Sharkey & Daniel Kenny have posted to SSRN FDA Leads, States Must Follow.  The absract provides:

As deference to administrative agencies has steadily come under attack, the FDA is a desert oasis. Courts have long deferred to the agency’s scientific expertise, particularly on matters of drug safety and effectiveness. But now, post-Dobbs, the FDA faces what this Article frames as two distinct types of legal challenges: (1) direct challenges to FDA actions, including drug approval decisions, and (2) indirect challenges to the primacy of FDA actions that arise in the context of preemption disputes over the extent to which state regulations conflict with federal regulatory schemes. Direct challenges to FDA actions are relatively rare and almost never succeed. Indirect challenges posed by state bans or restrictions on FDA-approved drugs amount to a new preemption frontier facing courts.

Where Congress has not definitely addressed the federal-state regulatory interaction, this Article marshals the longstanding record of judicial deference to the FDA’s scientific expertise; the "agency reference model" drawn from existing implied preemption doctrine; principles embedded in the statutes and regulations governing FDA approval of drugs; and normative arguments about the need for national uniformity to build a novel preemption framework to be enforced by courts in which the FDA’s risk calculus leads and the states must follow.

Under our framework, states cannot ban FDA-approved drugs, whether due to health and safety or political or moral objections. State restrictions that subvert the FDA’s risk calculus, such as bans of abortion-inducing drugs or telehealth proscriptions, cannot withstand preemption. But, where the FDA has not acted, states can fill the void either with gap-filling drug safety regulation, or—as the proliferation of gender-affirming care bans forewarns—the bootstrapping of politically-motivated decisions under the guise of health and safety.

Our framework whereby FDA leads and states must follow not only promotes national regulatory uniformity but—equally significantly—it harnesses the FDA’s capacity to incentivize the generation of high-quality clinical data about drugs’ safety and effectiveness.

Bublick and Bambauer on Harm to Police from Protests

Ellie Bublick and Jane Bambauer have posted to SSRN Tort Liability for Physical Harm to Police Arising from Protests:  Common-Law Principles for a Politicized World.  The abstract provides:

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters.

In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues.

Geistfeld on Medical Monitoring

Mark Geistfeld has posted to SSRN a piece he presented at Southwestern, The Equity of Tort Claims for Medical Monitoring.  The abstract provides:

A tort claim for medical monitoring commonly involves product defects that have exposed plaintiff-consumers to a significant risk of suffering bodily injury, such as cancer, at some point in the future. To protect themselves, these consumers must undergo periodic, costly medical testing. In pursuing a claim for medical monitoring, a plaintiff-consumer seeks tort recovery for these financial expenses on the ground that the defect foreseeably caused them. Such a claim for economic loss runs afoul of the ordinary limitation of negligence liability to physical harms, and so courts and commentators are deeply divided about whether tort law should recognize the medical monitoring cause of action.

Three fundamentally different types of principles can justify the requirement of physical harm, none of which is tied to a contestable conception of tort law. The strongest case against the medical monitoring cause of action is based on the principle that physical harms are more important than economic losses and stand-alone emotional harms, thereby barring monitoring claims in order to prevent the diversion of scarce compensatory resources away from those who have suffered physical harms to those who have not. Applying this principle to monitoring claims, however, violates the equitable principle that it is better to prevent the irreparable injury of physical harm through the exercise of reasonable care instead of attempting to compensate it with the inherently inadequate damages remedy. This principle justifies obligating a negligent defendant to incur the financial expenses of medical monitoring that would reasonably reduce the risk of future bodily injury. Moreover, there is no principled reason to prioritize presently existing physical harms over future ones; each one merits equal treatment. Medical monitoring claims would be even more equitable, however, if a plaintiff’s recovery were reduced by any health insurance proceeds covering those costs, thereby maximizing the amount of a defendant’s financial resources for compensating those who are already physically harmed.

MDL for Weight Loss and Diabetes Drugs in Philly

Dozens of lawsuits accuse Novo Nordisk or Eli Lilly, manufacturers of GLP-1 agonists, of failure to warn about the side effects of their drugs.  GLP-1 agonists are used to treat obesity and diabetes.  The alleged side effects include digestive symptoms, such as gallbladder removal or gastroparesis (a disorder that slows or stops the movement of food from the stomach to the small intestine).  Many of the drugs are very popular; they include Ozempic, Wegovy, Rybelsus, Trulicity, and Mounjaro.  Novo Nordisk and Eli Lilly deny any wrongdoing.  U.S. District Judge Gene E. K. Pratter of the Eastern District of Pennsylvania is overseeing the MDL.  The USA Today story is here.