TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, April 23, 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.

April 23, 2024 in Current Affairs | Permalink | Comments (0)

Tuesday, April 9, 2024

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

April 9, 2024 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Monday, April 1, 2024

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.  

April 1, 2024 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Wednesday, March 27, 2024

Lytton on Gary, Indiana's Suit Against Gun Manufacturers

In The Conversation, Tim Lytton has a piece on the demise of "the most consequential legal case against the gun industry in this country."

March 27, 2024 in Current Affairs | Permalink | Comments (0)

Monday, March 25, 2024

CA: Climate Lawsuit

Last September, California Governor Gavin Newsom and Attorney General Rob Bonta announced a lawsuit against "Big Oil" for climate change damage.  Causes of action include public nuisance and failure to warn pursuant to both negligence and strict products liability.  The complaint is here.  Similar lawsuits have failed in the past, but the government of California hopes that a change in public perception will influence the outcome in this case.  NPR has details.

March 25, 2024 in Current Affairs | Permalink | Comments (0)

Wednesday, March 20, 2024

Mass Torts Increase Federal Lawsuits in 2023

The number of federal lawsuits increased dramatically in 2023, led by earplug suits against 3M and talcum suits against J&J.  Reuters has the story.

March 20, 2024 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Thursday, March 14, 2024

OR: PacifiCorp Must Pay Over $42M to Property Owners for Fire Damage

Last Tuesday, an Oregon state jury determined PacifiCorp owes over $42 million dollars in compensatory and punitive damages to nine homeowners and the owners of a summer camp whose properties were damaged by wildfires in 2020.  Plaintiff's clam the Oregon utility failed to shut off its power lines in high wind; a separate jury has already determined PacifiCorp is liable for gross negligence in starting the fires.  Other claims are forthcoming.  Reuters has the story.

March 14, 2024 in Current Affairs | Permalink | Comments (0)

Friday, March 1, 2024

OR: Punies Verdict Reduced by Gore Guideposts

In Trebelhorn v. Prime Wimbledon, SPE, LLC, 372 Or. 27 (2024), the Oregon Supreme Court used the Gore guideposts to affirm the reduction of a punitive damages verdict in a premises liability case. 

  • A plaintiff tenant sued the landlord of his apartment building after sustaining injuries to his meniscus (knee) when an elevated walkway collapsed under him and his "leg punched through a section of elevated walkway that had been weakened by dry rot." There were obvious and severe structural problems with the apartment building, the defendants knew about them, and failed to fix the problems in a timely fashion, leading to the tenant's injuries.
  • The landlord admitted negligence and the trial focused on damages. The plaintiff won at trial and was awarded $45,000 in economic damages, $250,000 in noneconomic damages, and a s10,000,000 in punitive damages by the jury.
  • After post-trial motions in which the defendants successfully argued that the punitive damages violated the Due Process Clause of the Fourtheenth Amendment, the court reduced punitive damages to $2,660,373, determining that the original punitive damages at a ratio of 33:1 was excessive. The court of appeals affirmed.

The supreme court also affirmed.

  • Up until now, the supreme court has only applied these factors to cases involving purely economic harm. The court stated that "the evidence permitted the jury to draw reasonable inferences about defendants’ conduct that suggest a high degree of reprehensibility." The plaintiff also suffered physical harm, and thus there was no clear precedent to follow.
  • Ultimately, however, the court held that, despite the reprehensibility of the defendants' negligence and the existence of physical harm, the "single-digit ratio" (9:1) limitation to punitive damages proffered in Campbell is still a good determination of punitive damages allowable without violating the defendants' constitutional rights to due process, even if a plaintiff suffers physical harm/damages.
  • Predictably, the court refused to hold that a 9:1 ratio is a bright-line rule for such limitations and left the possibility for a higher ratio when a defendant's actions are "extraordinarily reprehensible."

Thanks to Andres Navarro.

March 1, 2024 in Current Affairs, Damages | Permalink | Comments (0)

Friday, February 16, 2024

Lytton on Mexico's Suit Against U.S. Gun-makers

Tim Lytton has a piece in The Conversation about Mexico's lawsuit against U.S. gun-makers for arming its gangs.

February 16, 2024 in Current Affairs | Permalink | Comments (0)

Monday, February 12, 2024

The Heartbalm Torts on Planet Money

NPR's Planet Money covers the heartbalm torts!  

Thanks to Rick Peltz-Steele for the tip.

February 12, 2024 in Current Affairs | Permalink | Comments (0)

Tuesday, January 30, 2024

$2.25 Billion Verdict Against Bayer for Roundup

A Pennsylvania man has been awarded $250,000 in compensatory damages and $2 billion in punies as a jury determined his non-Hodgkins lymphoma was caused by using Roundup in his yard for several years.  This is one of 6 recent plaintiff wins in Roundup trials, though the company has won 10 of the last 16.  In 2020, Bayer settled most of the then-existing cases for $9.6 billion, but was unable to obtain a settlement for future cases.  Over 50,000 claims are currently pending.  

U.S. News has the story.

January 30, 2024 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, January 8, 2024

IL: Appellate Court Holds that Mental Health Providers Can Be Liable for the Suicide of Outpatient Mental Health Clients

In a recent case, an Illinois appellate court held that mental health providers can be held liable for the suicide of their patients, even if they are treating them on an outpatient basis.  O’Donnell v. Bailey & Assocs. Counseling, 2023 IL App (1st) 221736, ¶ 3, ___ N.E.3d ___ (2023) (“[A] mental healthcare provider can be held liable when treating an outpatient client for a suicide that is proximately caused by the provider's failure to act within the standard of care.”).

January 8, 2024 in Current Affairs | Permalink | Comments (0)

Thursday, January 4, 2024

Developments in Immunity

Recently, the Supreme Court of Connecticut decided that the defense of discretionary act immunity does not apply to claims arising from the manner in which an emergency vehicle is operated.  Adesokan v. Town of Bloomfield, 347 Conn. 416, 421, 297 A.3d 983, 987 (2023).  Meanwhile, the Tenth Circuit Court of Appeals ruled that the U.S. Forest Service is not liable for its handling of a forest fire based on the discretionary function exception.  Knezovich v. United States, 82 F.4th 931, 934 (10tth Cir. 2023).

January 4, 2024 in Current Affairs | Permalink | Comments (0)

Tuesday, January 2, 2024

AZ: Liability of Mental Health Professionals for Harm to Third Parties by Patients Under Their Care

Overruling precedent, the Supreme Court of Arizona altered its Tarasoff-like rule.  Avitia v. Crisis Preparation & Recovery Inc., 536 P.3d 776, 778 (Ariz. 2023) (“[M]ental health professionals owe a duty to third parties based not on foreseeability of harm, but on their special relationship and public policy.”).

January 2, 2024 in Current Affairs | Permalink | Comments (0)

Wednesday, December 20, 2023

MI: Supreme Court Clarifies the Role of Open & Obvious in Premises Liability Cases

The Supreme Court of Michigan recently held that in premises liability cases whether a condition is open and obvious is relevant to breach and comparative fault, not duty.  Kandil-Elsayed v. F&E Oil, Inc., ___ N.W.2d ___, ___, 2023 WL 4845611, at *4, 2023 Mich. LEXIS 1148, at **3-4 (Mich. 2023) (“[T]he open and obvious nature of a condition is relevant to breach and the parties’ comparative fault.”; “[W]hen a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care.”).

December 20, 2023 in Current Affairs | Permalink | Comments (0)

Monday, December 18, 2023

AK: Supreme Court Rejects Loss of Chance Doctrine

The Alaska Supreme Court recently rejected the loss of chance doctrine.  Doan v. Banner Health, Inc., 535 P.3d 537, 539 (Alaska 2023) (declining to adopt loss of chance because “whether to recognize such a claim is a policy choice for the legislature to make.”).

December 18, 2023 in Current Affairs | Permalink | Comments (0)

Friday, December 15, 2023

Developments in Public Disclosure of Private Facts

The Supreme Court of Indiana recently held that public disclosure of private facts is not limited to intentional disclosures of private information, and that plaintiffs may recover emotional distress damages.  Z.D. v. Cmty. Health Network, 217 N.E.3d 527, 534, 535 (Ind. 2023) (“We thus find no basis for limiting the availability of the public-disclosure tort to only intentional disclosures of private information.”; “[U]pon satisfying the public-disclosure tort's elements, plaintiffs may recover emotional-distress damages.”).

Meanwhile, the Seventh Circuit Court of Appeals determined that the transmission of information to a single ministerial intermediary, in this case a third-party mail vendor, does not satisfy the publicity element of that tort.  Nabozny v. Optio Sols. LLC,  84 F.4th 731, 735, 736 (7th Cir. 2023) (Plaintiff alleged that “[Defendant] disclosed pieces of her private debt information to [a third-party mail vendor], and [the mail vendor] used this information to populate a form collection letter and sent it to [plaintiff].”; “The transmission of information to a single ministerial intermediary does not remotely resemble the publicity element”).

December 15, 2023 in Current Affairs | Permalink | Comments (0)

Thursday, December 14, 2023

TN: Economic Loss Doctrine Restricted to Products Liability

The Supreme Court of Tennessee recently restricted the economic loss doctrine to products liability cases.  Commercial Painting Co. v. Weitz Co. LLC, 676 S.W.3d 527, 540  (Tenn. 2023) (“[T]he economic loss doctrine should only apply in products liability cases. We decline to extend the doctrine to services contracts.”).

December 14, 2023 in Current Affairs, Damages, Products Liability | Permalink | Comments (0)

Wednesday, August 30, 2023

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.

August 30, 2023 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Wednesday, July 12, 2023

Fox on the Abortion Double Bind

Dov Fox has posted to SSRN The Abortion Double Bind.  The abstract provides:

Medically needed abortion treatment is being delayed and denied by doctors who are understandably wary not to cross the line set by blurry medical exceptions to felony prohibitions against ending a pregnancy. Which raises a legal puzzle: the very abortion that state bans outlaw as first-degree homicide, other parts of our legal system command as essential care to save a patient’s life or preserve her health. Leaving clinicians trapped between (1) the risk of criminal conviction for ending a pregnancy that’s not dangerous enough, and (2) the risk of civil liability for not ending a pregnancy that’s too dangerous, under state malpractice law or a federal statute that requires emergency medical treatment. The chilling effect of ambiguous emergency exemptions doesn’t mean it would be better for states to specify eligible conditions. Detailed lists might reassure tentative physicians seeking to perform an abortion under particular circumstances. But any such preclearance would also operate to suppress the case-by-case discretion that’s critical to provide treatment that’s responsive to context under time-sensitive conditions. This article traces key features of the abortion double bind to the era before Roe v. Wade. And it spells out concrete actions that concerned professionals and the groups that represent them should take to reduce the risk of being sued or prosecuted for exercising reasonable medical judgement and good-faith legal interpretation.

July 12, 2023 in Current Affairs, Scholarship | Permalink | Comments (0)