TortsProf Blog

Sebok on Damages

Tony Sebok has posted to SSRN his presentation from last year's symposium at Southwestern, Damages:  Symposium Presentation of Anthony Sebok.  The abstract provides:

Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm §27 adopts the "Anderson Rule," stating that a simultaneous sufficient cause does not prevent a tortious actor from being considered a cause-in-fact and thus potentially liable for the harm caused. However, Comment d of §27 reserves the issue of apportioning liability among sufficient tortious causes for a later section.

Restatement of the Law Third, Torts: Remedies §12 addresses this reserved issue, offering the following: (1) When a tortious cause and another tortious cause simultaneously cause harm, both are liable for all or part of the damages. (2) When a tortious cause and a non-tortious cause simultaneously cause harm, the Restatement does not take a position on liability. (3) When a tortious cause precedes a non-tortious cause that would have caused the same harm, the tortious cause is not liable for damages that would have occurred anyway. (4) When a tortious cause precedes another tortious cause that would have caused the same harm, the first tortious cause is liable for the damages.

In this transcript of a Southwestern Law School conference presentation on the Restatement of the Law Third, Torts, I argue that point (2) is inconsistent with points (1) and (4). If a tortious cause can be liable for damages even when harm would have occurred from another tortious cause (1), and is not liable when a subsequent natural cause would have caused the same harm (4), then (2) is contradictory. It doesn’t make sense to exempt a tortious cause from liability just because a prior tortious cause also contributed to the harm. If points (1) and (4) are correct, then point (2) fails to account for the moral responsibility of the tortious cause, regardless of the sequence of events.

Keating on the Restatement Third of Torts: Products Liability

Greg Keating has posted to SSRN a piece he presented at Southwestern law year, Is the Restatement of Design Defect a Defective Product?.  The abstract provides:

The American Law Institute’s Restatements of the Law present themselves as attempts to summarize and organize existing case law; to provide the most sensible and persuasive justifications for extant doctrine; and to state the law as it is in an intellectually coherent way. Restatements purport to reshape the law only by organizing and clarifying it, thereby “working it pure.” The justification for restating—not remaking—the law is evident enough. The American Law Institute is neither a legislature nor a common law court. The only authority that the Institute can claim is the authority of the law that it restates. But because Restatements are committed to the enterprise of restating law, they must often confront a basic predicament. How do you extract the law from the decisions of courts when those courts are deeply divided over the matters that you are restating? The problem is vividly illustrated by the Restatement, Third of Products Liability’s treatment of design defect. On its surface, the law that the Third Restatement restated was (and is still) sharply divided between two tests of design defect, namely, the risk-utility and consumer expectation tests. Beneath the surface, the law was (and is still) divided between negligence and enterprise liability conceptions of responsibility. Faced with deeply divided law, the Third Restatement embraced a negligence conception of the basis of design defect liability, and a single risk-utility test as the doctrinal expression of that conception. Unpersuasively—and unsuccessfully, too—the Restatement, Third presented that choice as a summarization of existing law, not as a normatively driven decision to prefer one possible product liability regime over another. Consequently, the Third Restatement of design defect is a defective incarnation of the basic Restatement project. Its failure invites us to ask if the Restatement project can succeed in the face of conflicting case law, and if we can imagine Restatements pursuing a different project. Might Restatements frankly acknowledge and illuminate conflicts in our law? Rather than claiming that the law speaks with a single voice when it does not, might Restatements work pure the competing voices of our law by presenting them to us in their most compelling and coherent incarnations? 

Restatement of Medical Malpractice is Approved

On Tuesday, the membership of the ALI voted to approve the Restatement (Third) of Torts:  Medical Malpractice.  The ALI's announcement is here.  Congratulations to the Reporters, Nora, Mike, and Mark!

Concluding the Restatement (Third) of Torts Papers Available

Last year, Southwestern Law School, in conjunction with the Panish Civil Justice Program and ALI, held a symposium on Concluding the Restatement (Third) of Torts.  Papers and transcripts from the symposium are now available on the Southwestern Law Review's website.  Special thanks to Elena Cordonean, the editor-in-chief, for all her work on the project.

i	Table of Contents (PDF)
351	Concluding the Restatement (Third) of Torts: An Introduction (PDF) Byron G. Stier and Christopher J. Robinette
358	A Brief Introduction to the American Law Institute and the Restatements of Torts (PDF) Hon. Goodwin H. Liu
364	The American Law Institute and the Restatement (Third) of Torts: Presentation of Michael Green (PDF) Michael D. Green
369	Tort Theory and the Restatement, in Retrospect (PDF) Keith N. Hylton
399	Is the Third Restatement of Design Defect a Defective Product? (PDF) Gregory C. Keating
428	The Role of Tort Theory in the Third Restatement of Torts: An Explanation and Defense (PDF) Kenneth W. Simons
444	Tort Theory and the Restatements: Presentation of Catherine Sharkey (PDF) Catherine M. Sharkey
450	Informed Consent in the Restatement of Medical Malpractice (PDF) Mark A. Hall
465	Modernizing the Medical Malpractice Standard of Care (PDF) Philip G. Peters, Jr.
478	Informed Consent in the New Restatement on Medical Malpractice: A Friendly Critique (PDF) Nina A. Kohn
484	Keynote Symposium Presentation of Brian Panish and Jesse Creed (PDF) Brian Panish and Jesse Creed
493	The Equity of Tort Claims for Medical Monitoring (PDF) Mark A. Geistfeld
512	The Restatement (Third) of Torts Proposes Abandoning Tort Law’s Present Injury Requirement to Allow Medical Monitoring Claims: Should Courts Follow? (PDF) Victor E. Schwartz and Christopher E. Appel
543	Trauma Damages (PDF) Martha Chamallas
580	Why Courts Should Continue to Reject Innovator Liability Theories that Seek to Hold Branded Drug Manufacturers Liable for Generic Drug Injuries (PDF) Mark A. Behrens and Christopher E. Appel
607	Damages: Symposium Presentation of Anthony Sebok (PDF) Anthony J. Sebok
615	Damages: Symposium Presentation of Ibiere Seck (PDF) Ibiere N. Seck
618	Damages and Trial Practice: Symposium Presentation of Judge Kevin Brazile (PDF) Hon. Kevin C. Brazile

Tort Law & Social Equality Project: Dagan & Dorfman on the Value of Personal Rights of Action

On Friday, May 17, at noon (EST), Hanoch Dagan & Avihay Dorfman will present "The Value of Personal Rights of Action."

The paper claims claim that contemporary champions of personal rights of action do not explain why and when these rights matter. Moreover, contemporary critics of these rights do not explain why all such rights should be replaced with other alternatives to the traditional system of common-law litigation, such as collective litigation. Their core thesis is that some personal rights of action can be valuable in and of themselves – that is, they carry freestanding value, beyond their contribution to vindicating plaintiffs’ substantive rights. On other cases, personal rights of action are legal technologies that are rightly dispensable with others if these replacements can better ensure the vindication of private plaintiffs’ rights. The key question, therefore, is not only whether personal rights of action are intrinsically valuable, but rather when. Dagan and Dorfman employ the normative framework of relational justice to address these questions. 

The flyer (with a Zoom link) is here:  Download Dagan & Dorfman

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.

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.

Chamallas on Trauma Damages

Martha Chamallas has posted to SSRN Trauma Damages, a paper she delivered at Southwestern's Concluding the Restatement (Third) of Torts symposium last year.  The abstract provides:

The concept of trauma has increasingly been used to describe the experiences of marginalized groups and has a special relevance to systemic injuries and abuses of power that can form the basis of personal injury claims. Although trauma would seem to have everything to do with tort law, not much attention has been paid to trauma and its connection to torts, either with respect to substantive claims or remedies. This article looks at three contemporary contexts of trauma – rape trauma, racial trauma, and birth trauma – and explores their implications for tort recovery. It examines how trauma in each context compares to post-traumatic stress disorder (PTSD) and explains why many trauma victims are unable to qualify for a PTSD diagnosis, even though they experience many symptoms of PTSD. It explores the potential of victims of chronic racism to bring claims for intentional infliction of emotional distress and the possibility of classifying such persons as “eggshell plaintiffs” who are likely to suffer intensified injuries because they experienced trauma in the past. Connecting birth trauma to obstetric violence and mistreatment, it canvasses the sparse case law and the legal obstacles facing persons giving birth, particularly women of color, who are subjected to abuse, coercive tactics, and disrespect by medical personnel. The article calls for a dismantling of the artificial distinction between physical and emotional harm which stymies recovery for traumatic injury and for a recommitment to the eggshell plaintiff rule to respond to the realities of underserved communities marked by violence, injustice, poverty, and deprivation. If the widespread incidence of trauma were reflected in tort doctrine, it could change how we estimate losses and extend more generous tort recoveries beyond the usual class of affluent victims who suffer measurable economic loss.

Sperino on the Causation Canon

From Zoë Sinel:

I am thrilled to announce the second speaker in the Tort Law and Social Equality Project Speakers Series. This series features monthly presentations from scholars around the world who work on topics situated at the intersection of torts and social justice. Its aim is to foster debate and dialogue within the academic community focused on these topics and cultivate social justice tort theory as a distinctive field of inquiry. A full list of presenters can be found on the Tort Law and Social Equality (TLSE)  website (see link below).

Our second speaker is Professor Sandra Sperino, the Elwood L Thomas Endowed Professor at the University of Missouri School of Law.  Her talk, "The Causation Canon," will take place on Friday, February 16 at 1pm (EST) over Zoom. The link can be found on the attached poster:   Download Sandra Sperino_Speaker Series 2 (2)

Presentations will be hosted virtually by the University of Toronto Faculty of Law and are open to the public. They will last about 45 minutes and will be followed by a 45-minute Q&A period. Sessions will be recorded and made available for subsequent online viewing. Attendees are not expected to pre-read.

For more information on the Tort Law and Social Equality project, see: https://www.tortlawandsocialequality.ca/

Please share this information widely with students and colleagues. I hope to see many of you there!

Abraham & White on Offensive Battery

Ken Abraham & Ted White have posted to SSRN How an Old Tort Became New:  the Case of Offensive Battery.  The abstract provides:

This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient tort, having been actionable for centuries under the old common law writ of trespass. When the forms of action were abolished in the second half of the nineteenth century, it continued as a civil wrong. Offensive battery was recognized in the first Restatement of Torts in cases involving physical contacts that were “offensive to a reasonable sense of personal dignity.” Although for many decades there were few cases alleging this form of battery, it was also included in the second and third Restatements of Torts. Around 1985, the number of cases alleging offensive battery increased dramatically.

This Article describes how the old tort became a new one. It chronicles the history of offensive battery, breaks down the characteristics of the cases that were reported after 1985, and offers explanations for the transformation of the old tort. Two explanations stand out. First, many of the modern cases involve offensive sexual touching of female plaintiffs. Heightened sensitivity to this wrong and increased receptivity to suits alleging it are, in our view, part of the explanation for the number of increased cases. The other part of the explanation involves the synergy between offensive battery and the other causes of action with which offensive battery was allied in the modern cases. Whether in Title VII, law enforcement use of excessive force, or cases involving other alleged wrongs, the offensive battery claim gained normative weight through its linkage with the larger narrative of wrongful conduct, and the larger narrative gained normative weight through its linkage with offensive battery. In short, the “new” tort of offensive battery typically is employed as just one weapon in an arsenal in which separate causes of action are allied together.

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

Green Presents at the University of Chile

Mike Green, Reporter for R3:  Miscellaneous Provisions and Medical Malpractice, will speak at a conference in Chile.  On July 7 and 8, the Private Law Department at the University of Chile is hosting “II International Congress: Re-systematizing Civil Liability - Evolution of Imputation Factor, Causation and Damage,” featuring torts experts from South America, Europe, and the US.  Green will present ‘Concurring Innocent and Tortious Causes: The Third Restatement of Torts Punts.’  The ALI website has coverage here.

Plaintiffs and Attorneys in MDLs

A year ago, the Deborah L. Rhode Center on the Legal Profession at Stanford convened a conference on MDLs.  Nora Freeman Engstrom, Todd Venook, David Freeman Engstrom, and Silvie Saltzman have now published a report on the conference.  The key point was that the attorney-client relationship in MDLs merits close inspection.  Conference participants differed on the nature and extent of the underlying challenges.

Hylton on Tort Theory in the Restatement

Keith Hylton has posted to SSRN Tort Theory and the Restatement, in Retrospect, a paper he delivered at Southwestern as part of the Concluding the Restatement (Third) of Torts symposium.  The abstract provides:

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared that process to the process by which the Restatement identifies and articulates rules. In this paper, I am looking back and assessing the connection between positive tort theory and the Restatement. My general argument is that positive tort theory has been successful in explaining the grounds for the common law of torts, and at the same time it remains an underutilized and underexploited resource for the Restatement project.

ALI Announces Symposium on Concluding the Restatement (Third) of Torts

ALI coverage of Southwestern's symposium is here.

Obligations X Conference: Private Law and the State

The Tenth Biennial Conference on the Law of Obligations will be hosted by Western Law and held at the Banff Centre for Arts and Creativity in Alberta, Canada from 11–14 July 2023. The conference will be co-convened by Professors Jason Neyers, Andrew Robertson, Zoë Sinel, and Joanna Langille. The biennial Obligations Conference brings together legal scholars, judges, and practitioners from throughout the common law world to discuss current issues in private law theory and doctrine. The conference is generously sponsored by Borden Ladner Gervais LLP, Hart Publishing, The Marcel A. Desautels Centre for Private Enterprise and the Law, Miller Thomson LLP, Polley Faith LLP and the Social Sciences and Humanities Research Council.  More information and registration here.

"Concluding the Restatement (Third) of Torts" at Southwestern Law School

Byron Stier and I are pleased to announce "Concluding the Restatement (Third) of Torts" at Southwestern Law School on March 24, 2023:

Since the early 1990s, the American Law Institute has been drafting the Restatement (Third) of Torts.  That effort, down to a handful of projects, is within several years of completion.  Leading scholars, judges, and practitioners, many of them Reporters or Advisers for the final portions of the Restatement, will gather at Southwestern Law School to discuss significant remaining issues.  Occurring during the drafting process, the symposium is designed to affect positively the Restatement, and thus the law.

Sponsored by the Southwestern Law Review, Southwestern’s Panish Civil Justice Program, and the American Law Institute, the symposium will commence with a welcome by Justice Goodwin Liu of the California Supreme Court and the Council of the American Law Institute and will also include a luncheon keynote address by Brian Panish ’84, one of the nation’s leading trial lawyers.

The first panel will focus on the appropriate role of theory in the Restatement process.  The second panel will address issues of medical malpractice, including the proper standard of liability and California’s MICRA cap on damages, recently raised for the first time since its enactment in 1975.  The third panel will consider the controversial question of whether and how to recognize claims for medical monitoring in the context of the affirmative stance taken in the current draft of the Restatement.  Panel four will discuss issues in damages; many of the most heated disputes in tort law concern the proper amount of compensation to be paid for tortious injuries.  The symposium will conclude with a Reporters’ Roundtable, in which three sitting Restatement Reporters provide their analyses of key points from the day.

Speakers include Reporters Nora Freeman Engstrom, Mike Green, and Mark Hall, as well as Mark Behrens, Judge Kevin Brazile, Martha Chamallas, Mark Geistfeld, Deborah Hensler, Keith Hylton, Greg Keating, Nina Kohn, Justice Goodwin Liu, Brian Panish, Rex Parris, Phil Peters, Victor Schwartz, Tony Sebok, Cathy Sharkey, Ken Simons, David Studdert, and Adam Zimmerman.

More information is here.

Annual Conference on European Tort Law Brochure

The brochure for the 22nd Annual Conference on European Tort Law (April 13 and 14, 2023 in Vienna) is available here:  Download ACET_Folder_20230110

Torts at the AALS Annual Meeting in San Diego

At the AALS Annual Meeting, the Torts & Compensation Systems Section has two events on Thursday, January 5th.  From noon until 1:00 is the awards ceremony at which the Prosser Award is bestowed upon John Goldberg and Ben Zipursky.  From 3:00 until 4:40 is the Section meeting.  The panel is entitled "Opioid Litigation:  The Good, the Bad, and the Ugly."  Speakers include Elizabeth Cabraser, Nora Engstrom, Charles Lifland, Linda Mullenix, Jennifer Oliva, and Lindsey Simon.  Tim Lytton will serve as moderator.  The blurb provides:

The nationwide wave of lawsuits against opioid manufacturers, distributors, and retailers is, arguably, the most significant litigation phenomenon of the 21st century. Opioid litigation includes many features that are now familiar to observers of mass torts: multi-district class-action litigation, government-entity plaintiffs, corporate bankruptcy, and eye-popping settlements. This session will offer a brief analysis of the current state of opioid litigation. Panelists and session attendees will then share their views on the success of this litigation as a response to the opioid crisis and discuss general lessons to be learned for the future.

Today is the last day for early-bird registration.

Tort Law Day 2022 at the American Museum of Tort Law

The Museum is having a virtual event for Tort Law Day 2022 on Saturday, October 29 at 1:00 Eastern.  Register here.

Shanin Specter

1:00 pm ET - Tort Law An Instrument of Social Justice
Founding Partner, Kline & Specter

Joanne Doroshow

1:30 pm ET - The Importance of Protecting and Advancing Tort Law
Founder and Executive Director of the Center for Justice & Democracy

Professor Valerie P. Hans

2:00 pm ET- Understanding and Safeguarding the Trial By Jury
Charles F. Rechlin Professor of Law, Cornell Law School

Greg Kafoury

2:30 pm ET- Seeking Justice for Injured Plaintiffs
Partner, Kafoury & McDougal

Ralph Nader

3:00 pm ET- Educating The Public About the Role of Tort Law in our Democracy
Consumer Advocate & President of the American Museum of Tort Law