TortsProf Blog

Goldman's Amicus Brief in Gonzalez v. Google

Eric Goldman has posted to SSRN his amicus brief in Gonzalez v. Google.  The abstract provides:

This is Prof. Eric Goldman's amicus brief in the U.S. Supreme Court case of Gonzalez v. Google, involving the scope of 47 USC 230's immunity for user-generated content services. The brief explains the interplay between Section 230 and the First Amendment, including how Section 230 provides important procedural complements to the First Amendment's substantive protections for online publishers. It also explains how the plaintiffs' requests to exclude algorithmic recommendations from Section 230's immunity would undermine Section 230's procedural benefits.

Nolan & Plunkett on Negligence in the UKSC

Donal Nolan & James Plunkett have posted to SSRN Keeping Negligence Simple.  The abstract provides:

In this case note, we consider the UK Supreme Court decision in Meadows v Khan [2021] UKSC 21, [2022] AC 852, which concerned the scope of the duty of care that a GP owed to a patient who was a carrier of the haemophilia gene. Although we agree with the decision in the case, we argue that the approach of the majority Justices was unnecessarily complex, and that the issue should have been dealt with as a question of remoteness rather than duty. We also subject the majority’s six-part ‘roadmap’ for negligence cases to critical review, and conclude that it is likely to obfuscate rather than illuminate.

The Kingston Coal Ash Workers and the Tennessee Damages Cap

Anila Yoganathan of the Knoxville News Sentinel has been covering the lawsuits filed by workers who cleaned up a coal ash site in eastern Tennessee following a spill in 2008.  Yesterday she published a story about the potential effects of Tennessee's noneconomic damages cap, which generally caps pain and suffering at $750,000.  Her story is here.  

Earlier coverage is here, here, and here.

Geistfeld & Witt File Amicus Brief in USSC Labor Case

Mark Geistfeld and John Witt have filed an amicus brief in Glacier Northwest v. Teamsters Local 174.  The issue is whether the National Labor Relations Act preempts state tort claims for conversion and trespass to chattels filed by an employer against employees and their union.  That general issue has been regarded as settled for decades, but the Court agreed to hear the case.  Witt explains the case here.  The brief is here.

CA: Claims for Fradulent Inducement Not Barred by Economic Loss Rule; Cites R3 Economic Harm

From the ALI website:

In Dhital v. Nissan North America, Inc., 2022 WL 14772909 (Cal. Ct. App. Oct. 26, 2022), the California Court of Appeal held that claims for fraudulent inducement were not barred by the economic-loss rule as defined by Restatement of the Law Third, Torts: Liability for Economic Harm § 3. The case was brought by consumers who alleged that they purchased a vehicle with a defective transmission system from the defendant manufacturer, and that the defendant, “by fraudulently concealing the defects, induced them to purchase the car.”

The court explained that the plaintiffs’ claim for fraudulent inducement fell within an exception to the economic-loss rule because the defendant’s fraudulent inducement violated a duty that was “independent of [its] alleged warranty breaches.” Citing § 9 of the Restatement, it observed that the expectation of honesty during negotiation of the purchase contract called for remedies not customarily available from the law of contract or restitution, because “parties to a contract generally [did] not treat the possibility that they [lied] to each other as a risk for the contract to allocate.”

Engstrom, Hyman & Silver Amicus Brief on Damages

Nora Engstrom, David Hyman & Charles Silver have filed an amicus brief in a Texas case on damages:

The brief addresses two misguided proposals that Petitioners—tort defendants in the trial court below—are pushing in a case currently before the Supreme Court of Texas.  The first proposal is to require Texas courts to consider comparison cases when reviewing the reasonableness of awards of noneconomic damages.  The brief argues that that proposal is unsound conceptually and unworkable empirically, which is why other courts that have tried the approach have quickly abandoned it.  Second, Petitioners insist that noneconomic damages should be limited to a predetermined ratio of economic damages, as is currently the case for compensatory damages and punitive damages.  The brief argues that, in addition to violating the bedrock principle that prevailing tort plaintiffs are to be made whole, this second proposal, by tethering damages for pain and suffering to lost wages, would disproportionately harm certain (low-wage-earning) accident victims, including women, children, and the elderly.  In the brief’s words:  “If Petitioners have their way, Texas’s civil justice system will systematically (but irrationally) discount the pain endured by old persons, young persons, and stay-at-home moms.”  Finally, the brief takes issue with the contention by Petitioners and their supporting amici that noneconomic damage awards in Texas have “skyrocketed.”  For starters, the brief notes that, although the insurance industry amici have proprietary data on which their business models depend, they have offered no evidence to support their empirical claim.  That silence is telling.  Moreover, after compiling and analyzing the best data that is publicly available, the brief reports that it appears that noneconomic damages aren't increasing but are, rather, in sharp decline.  

The brief is here:  Download Law Professor Amici Curiae Brief in Support of Respondents (1)

Seattle Jury Awards $275M Against Monsanto in PCB Trial

Last Thursday, a Seattle jury awarded $275 million to six adults and seven children who alleged they suffered brain damage due to exposure to PCB (polychlorinated biphenyls) manufactured by Monsanto.  This was the fifth case against Monsanto over exposure to PCB at Sky Valley Education Center in Washington.  Juries awarded damages in three of the other cases, but a fourth case ended in a mistrial.  Monsanto plans to appeal the verdict.  Amanda Bronstad at Law.com has the story (behind a paywall).  Thanks to Leslie Rowan for the tip.

Spectrum Stabbing Damages Reduced to $1.15 Billion

In late June, a Texas jury found Spectrum liable in the death of one of its customers.  The company employed an internet installer who robbed and stabbed an 83-year-old woman to death.  The jury found the murderer was 10% responsible and Spectrum was 90% responsible.  The jury awarded $375 million in compensatory damages; Spectrum's share was $337.5 million.  In late July, in a second phase of trial, the jury awarded the family $7 billion in punitive damages.  Earlier coverage is here.  

As anticipated, the $7 billion punitive damages award has been reduced by the trial judge.  The plaintiffs' attorneys actually requested the reduction to protect the verdict on appeal.  They requested a ratio of 2:1 and received it.  The total award is now $1.15 billion.  Spectrum states it will appeal.  Dave Simpson at Law360 has the story (behind a paywall; it is also available on Lexis).  

Ford Hit With $1.7 Billion Punitive Damages Verdict in Pickup Truck Rollover Case

A Georgia jury awarded $24 million in compensatory and $1.7 billion in punitive damages to the sons of a couple killed when their Ford pickup truck rolled over.  The roof of the truck collapsed after a tire blowout, killing the couple.  The jury heard evidence of a number of prior similar incidents, but many of those cases have been resolved with confidential settlements.  The jury also heard evidence of Ford's wealth.  Even the plaintiffs' lawyer admits the punitive damages award is likely to be reduced, as it is approximately 70 times the compensatory damages award.  Georgia has a split-recovery system, one of approximately eight, in which the state receives a portion of a punitive damages awards (in this case, 3/4).

Hannah Albarazi at Law 360 has the story, quoting Cathy Sharkey, Ben Zipursky, and me.

TX: Jury Awards $7 Billion in Punitive Damages Against Cable Company

In late June, a Texas jury found Spectrum liable for the death of one of its customers.  The cable company employed an internet installer who robbed and stabbed an 83-year-old woman to death.  The jury found the murderer 10% responsible and Spectrum 90% responsible.  Years earlier, Spectrum had ceased industry-standard, pre-employment verification checks.  Such a check would have revealed that the murderer had fabricated his work history and was fired from several jobs for theft and misconduct.  The company also had notice that the murderer was suffering emotional and financial problems prior to the robbery and murder.  The jury awarded $375 million in compensatory damages, of which part Spectrum was to pay $337.5 million.  The jury also determined that Spectrum forged an arbitration agreement.

In late July, the jury awarded the plaintiffs $7 billion in punies.  The forgery finding allowed the plaintiffs to avoid Texas's cap on punitive damages.  That verdict, however, is going to be severely tested on post-trial motions and appeal.  The Court's Due Process jurisprudence does not impose a hard cap, but it does set limits.  In State Farm v. Campbell, the Court stated that few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy Due Process.  It further stated that an award of more than four times might be close to the line of constitutional impropriety, and that when compensatory damages are substantial, a one-to-one ratio is likely the outermost limit.  The current ratio is approximately 20:1.  

Awards of this magnitude are often reduced.  The largest punitive damages award to an individual of which I am aware is a 2002 California jury verdict of $28 billion against Phillip Morris.  Ultimately, after 9 years of appeals, the award was reduced to $28 million.  The plaintiff had died years earlier.   

Cara Salvatore at Law 360 has the story (behind a pay wall).

Magliocca on Dobbs and Wrongful Birth Actions

At Prawfsblawg, Gerard Magliocca discusses the effects of Dobbs on wrongful birth actions.

Levin & Lytton on Bruen

Hillel Levin and Tim Lytton have written Firearms Regulation through Constitutional Litigation.  A sample:

“Beyond its impacts on gun control legislation, Bruen also has implications for another front in the battle over gun control: civil litigation against the firearms industry.”

“Bruen may have erected an immunity shield for the firearms industry that is far more extensive than the one that Congress constructed in PLCAA.”

Karnaukh on the Territorial Tort Exception

Bohdan Karnaukh, a Ukrainian tort scholar, has written a note about a recent opinion of the Ukrainian Supreme Court on the availability of tort actions against Russia for torts/crimes against Ukrainian citizens.  The abstract provides:

The jurisdictional immunity of a state means that the state cannot be involved as a defendant in a case considered by a foreign court. In Ukraine, the rule on the jurisdictional immunity of a foreign state is enshrined in Art. 79 of the Law of Ukraine ‘On Private International Law’. Until 14 April 2022, the Ukrainian Supreme Court rigidly applied the provisions of the said article and recognised the Russian Federation’s immunity with regard to claims brought by Ukrainian citizens seeking compensation for harm caused by the armed conflict that commenced in 2014. Yet shortly after 24 February 2022, when Russia’s aggression against Ukraine entered a new phase, i.e., the phase of full-scale war, the Supreme Court changed its mind.

This note addresses the ruling of the Ukrainian Supreme Court of 14 April 2022 in case no. 308/9708/19, where the Court held that the Russian Federation could not plead immunity with regard to tort claims brought by the victims of the Russia-Ukraine war. In reaching this conclusion, the Court relied on the territorial tort exception enshrined in the European Convention on State Immunity (Basel, 16 May 1972) and the UN Convention on Jurisdictional Immunities of States and Their Property. Though neither of the two conventions has been ratified by either Ukraine or the Russian Federation, the Court found that these conventions indicate a general tendency in international customary law towards limiting the jurisdictional immunity of the states.

The reasoning of the Supreme Court is examined by scrutinising the authorities the Court adduced in support of its ruling, as well as by putting the ruling in the broader context of the jurisprudence of the International Court of Justice (ICJ) and European Court of Human Rights (ECtHR). 

It is concluded that what the Supreme Court utilised is not the territorial tort exception but rather the ‘human rights/jus cogens’ exception. Further, the case before the Ukrainian Supreme Court is distinguishable from the ICJ and the ECtHR cases, where it was held that notwithstanding gross violations of human rights, the respondent state should nevertheless enjoy immunity. Unlike those cases, the Ukrainian case was tried amid the ongoing war, when no reparation agreements had been concluded, the legitimate aim of ‘promoting comity and good relations between states’ had been frustrated, and it was no longer possible to justify the restriction of the plaintiff’s right of access to a fair trial.

COVID-19 Business Interruption Claims

The Hollywood Reporter has an article on COVID-19 business interruption claims, relying heavily on Tom Baker.  An excerpt:

According to the COVID-19 insurance litigation tracker, 85 percent of cases considered for dismissal in federal court get tossed, compared with 66 percent in state court. “The federal courts have largely gone for the insurance industry,” Baker says. “In state court, it’s been much more variable. That’s where the action is, because at the end of the day, these are state law questions.”

The article is here.  Coverage from the ALI website is here.

Engstrom on Medicaid and Personal Injury Litigation

On Monday, the USSC interpreted the federal Medicaid Act as allowing a state, exercising its right of subrogation, to recoup not only past but also future expenses from Medicaid beneficiaries.  Nora Freeman Engstrom and Graham Ambrose discuss the implications of Gallardo v. Marstiller here.

The Kingston Coal Ash Spill and the Tennessee Silica Claims Priorities Act

I have been covering a case in the Eastern District of Tennessee brought by workers alleging injuries sustained during the cleanup of a massive coal ash spill in 2008.  Today the Tennessee Supreme Court hears arguments about whether the Tennessee Silica Claims Priorities Act, a statute passed in the wake of fraudulent silicosis claims in the early 2000s, applies to coal ash.  In a recent post, I wrote:

The Tennessee Supreme Court, meanwhile, is going to decide whether the Tennessee Silica Claims Priorities Act applies to the case.  That statute is a reform that includes a 10-year lung cancer latency requirement, a five-year substantial occupational exposure requirement, and various requirements for medical experts providing testimony.  If the statute applies, many of the plaintiffs will be dismissed.  The issues include whether coal ash qualifies as "mixed dust" for purposes of the statute and whether the statute, not invoked until considerably after the complaints were filed, is an affirmative defense.

Earlier posts on the case are here and here.  Anila Yoganathan of the Knoxville News Sentinel, who is providing excellent coverage of the case, has a new piece about today's arguments.  The proceeding is on YouTube here.  Anila's (post-argument) coverage of it is here.

CA: Newsom Signs MICRA Med Mal Cap Increase

Last month, I reported that a compromise had been reached to raise the $250,000 noneconomic damages cap for California med mal claims.  On Monday, Governor Gavin Newsom signed that legislation into law.  The basics of the deal, as reported by Cheryl Miller at Law.com:

The deal will raise California’s current $250,000 limit on noneconomic damages starting in 2023 to $350,000 in incidents where the victim does not die, and to $500,000 in wrongful death incidents. The caps will continue to rise incrementally over the following 10 years to $750,000 and $1 million. After 2033, the award limits will increase by 2% annually.

Melody Gutierrez at the LA Times has the story.

Sixth Circuit Holds No Derivative Immunity in Kingston Coal Ash Spill Case

Recently, I wrote about a case filed by workers alleging their exposure to coal ash during a clean up resulted in numerous health issues.  The plaintiffs worked for a contractor hired to clean up a coal ash spill from a power plant owned and operated by the Tennessee Valley Authority (TVA).  Plaintiffs filed suit against the contractor and the contractor argued it was entitled to share the immunity of the government agency with which it contracted.  The case has been going on for nine years and this was the second trip to the Sixth Circuit over this issue.

Yesterday, the court rejected the claim to derivative immunity (opinion here:  Download 6thCircuit_Decision_Opinion (1)).  Although most tort immunity issues involving the federal government are focused on the Federal Tort Claims Act, the TVA is explicitly excluded in that statute.  TVA is a hybrid government/private entity and the legislation creating it included a sue-and-be-sued clause.  The proper immunity analysis to be applied to TVA was recently covered in Thacker v. TVA, 139 S. Ct. 1435 (2019).  Based on that analysis, when determining derivative immunity, the two broad questions are:  (1) would the TVA have been immune if it were sued directly?; and (2) is the contractor entitled to share the immunity of TVA?.  The second question revolves around whether the contractor followed the TVA's instructions, but there is a dispute in this case about how to phrase the standard.  The test for TVA's immunity is itself divided into two parts.  The first is whether the act in question was commercial or governmental.  If it was commercial, there is no immunity.  If it was governmental, there is a further issue to be resolved.  If TVA is operating in a governmental capacity, the sue-and-be-sued clause is limited by implied exceptions if: (1) the suit is not consistent with a statutory or constitutional scheme; (2) the suit would gravely interfere with the performance of a government function; or (3) for other reasons it was plainly the purpose of Congress to use the sue-and-be-sued clause in a narrow sense (essentially a catch-all).  

In this particular case, the court worked through the following analysis.  First, would the TVA have been immune if it were sued directly?  (Was the act in question--cleaning up a coal ash spill--commercial or governmental?  And are these tort suits inconsistent with the Supremacy Clause and CERCLA (the statute under which the clean up proceeded)?  Are these torts suits a grave interference with a government function?  Second, should the contractor share in the TVA's immunity?

The court found no need to decide whether the clean up was commercial or governmental and no need to decide if the contractor would share the TVA's immunity.  It held that even if the clean up was a governmental function, the suits were not inconsistent with the Supremacy Clause or CERCLA and were not a grave interference with a governmental function.  As to the consistency with the Supremacy Clause and CERCLA, the court noted that the plaintiffs' theory does not challenge the adequacy of the safety plan drawn up pursuant to CERCLA; the plaintiffs allege that the contractor failed to comply with those terms (a jury in a phase I trial has concluded the contractor did fail to comply with the terms).  As to the grave interference issue, the court emphasized the existence of the sue-and-be-sued clause and again noted that the plaintiffs were not challenging the safety plan itself, only the contractor's compliance with it.

Next up is a case in the Tennessee Supreme Court (June 1) on whether the Tennessee Silica Claims Priorities Act applies to these cases and perhaps after that a phase II trial.  Anila Yoganathan at the Knoxville News Sentinel has the story.

CA: Deal to Raise MICRA Med Mal Damage Cap

A compromise among trial lawyers, medical groups, and lawmakers has been reached that will raise California's medical malpractice caps and avert a November ballot initiative.  In 1975, California passed MICRA, which capped pain and suffering damages in med mal cases at $250,000.  The cap has not been raised since.  In today's money, $250,000 is equivalent to approximately $1.3 million.  According to Cheryl Miller at Law.com:

The deal will raise California’s current $250,000 limit on noneconomic damages starting in 2023 to $350,000 in incidents where the victim does not die, and to $500,000 in wrongful death incidents. The caps will continue to rise incrementally over the following 10 years to $750,000 and $1 million. After 2033, the award limits will increase by 2% annually.

Bravo to all involved!  The story (behind a paywall) is here.

Feldman on Public Nuisance and the Second Amendment

Heidi Li Feldman has posted to SSRN Public Nuisance Liability and the Irrelevance of the Second Amendment.  The abstract provides:

In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.

States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s. New York has already enacted such legislation. A similar bill has been introduced in California. The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.