Wednesday, August 30, 2023
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.
Wednesday, July 12, 2023
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.
Thursday, June 29, 2023
The Fourth Circuit joined the Third and Eighth Circuits in holding that TSA screeners are subject to suit pursuant to the Federal Tort Claims Act. Osmon v. United States, 66 F.4th 144, 147 (4th Cir. 2023) (“[T]he FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”).
Friday, June 23, 2023
The Court held that the 11 U.S.C. § 523(a)(2)(A) exception to discharging debt for money obtained by fraud extends to an unknowing business partner. Bartenwerfer v. Buckley, 598 U.S. ___, ___, 143 S. Ct. 665, 670, 214 L. Ed. 2d 434, 439 (2023).
Thursday, June 1, 2023
Two weeks ago, the USSC ruled that victims of a terrorist attack in Turkey failed to state a claim for aiding and abetting against certain social media companies under Section 2333(d)(2) of the Antiterrorism Act. The Court cited Restatement (Second) of Torts and Restatement (Third) of Torts: Intentional Torts to Persons. The ALI Adviser covered the case:
Associate Justice Clarence Thomas, writing for a unanimous Court, explained that our legal system seeks to impose liability for aiding and abetting on those with “[s]ome level of blameworthiness,” and cited Restatement of the Law Second, Torts § 876, Illustration 9, in noting that, if liability were expanded too far, “those who merely deliver mail or transmit emails could be liable for the tortious messages contained therein.” The Court rejected the plaintiffs’ argument that the defendants could be liable if they aided and abetted ISIS generally, and explained, citing Restatement of the Law Second, Torts § 876(b) and Comment d thereto, that “a defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong—here, an act of international terrorism.” The Court also determined that the defendants, who posited that they were liable only if they directly aided and abetted the attack, “overstate[d] the nexus that §2333(d)(2) requires between the alleged assistance and the wrongful act,” because “aiding and abetting does not require the defendant to have known ‘all particulars of the primary actor’s plan,’” according to Restatement of the Law Third, Torts: Intentional Torts to Persons § 10, Comment c (T.D. No. 3, 2018) and Restatement of the Law Second, Torts § 876, Illustration 10. The Court noted that, as was the case in Halberstam, a secondary defendant who aided and abetted a tort could be liable for torts that were a foreseeable risk of the intended tort, and the “secondary defendant’s role in an illicit enterprise can be so systemic that the secondary defendant is aiding and abetting every wrongful act committed by that enterprise.” Citing § 876, Comment a, the Court clarified that conspiracy liability “typically holds co-conspirators liable for all reasonably foreseeable acts taken to further the conspiracy,” but “aiding and abetting lacks the requisite agreement that justifies such extensive conspiracy liability.”
The Court concluded that, “[g]iven the lack of nexus between that assistance and the Reina attack, the lack of any defendant intending to assist ISIS, and the lack of any sort of affirmative and culpable misconduct that would aid ISIS, plaintiffs’ claims fall far short of plausibly alleging that defendants aided and abetted the Reina attack.”
The full opinion is here.
Wednesday, May 24, 2023
After the spill, the Tennessee Valley Authority (TVA) was named the lead agency for cleanup under CERCLA. In turn, TVA designated a contractor to lead the efforts. Cleanup continued until 2015, but in 2013 a number of workers hired by the contractor filed lawsuits alleging the contractor failed to protect them from the deleterious effects of coal ash. Plaintiffs alleged they suffered numerous health problems due to exposure to coal ash. The parties argued two major legal issues. First, was the contractor entitled to TVA's sovereign immunity? The Sixth Circuit heard arguments on this issue twice, ultimately denying the contractor derviative immunity. The second issue was whether many of the plaintiffs' claims were subject to the Tennessee Silica Claims Priorities Act, and, thus, dismissal. 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. The dispute centered around whether coal ash and these plaintiffs' claims are covered by the statute. The Tennessee Supreme Court heard arguments in that case nearly a year ago, but apparently the parties have settled the case prior to a ruling. The plaintiffs won a phase-one trial establishing, among other things, general causation. A phase-two trial on specific causation was never held.
Anila Yoganathan of the Knoxville News Sentinel has provided terrific coverage of the case and has a story about the implications of the decade-long dispute. She focuses on the tensions of settlement versus vindication, the effects of not receiving a ruling from the Tennessee Supreme Court, and the increased vulnerability of TVA to future coal ash suits.
Monday, May 22, 2023
Recent tort reform in Florida is a major story that I have yet to cover. In late March, Governor DeSantis signed into law a significant tort reform package that changed Florida law in a number of ways:
- A century-old law in Florida provided for "one-way" attorneys' fees, pursuant to which insurance companies had to pay the attorneys' fees of any policyholder who successfully sued the insurer. Under the new law, each side will pay their own fees.
- Bad faith claims against insurers were limited, allowing insurers to pay the claim or the lesser end of the policy limits within 90 days.
- In negligence cases, pure comparative fault was replaced by the modified 50% rule.
- The negligence statute of limitations was reduced from 4 to 2 years.
- In premises liability cases, the jury must now consider the fault of a third-party criminal attacker.
Thursday, May 18, 2023
Compare Beebe v. N. Idaho Day Surgery, ___ Idaho ___, ___, 526 P.3d 650, 658 (2023) (“[T]his Court has consistently held that the ‘substantial factor’ jury instruction must be given when the evidence at trial produces multiple potential causes that could have contributed to a plaintiff's injury.”) with Haas v. Estate of Carter, 370 Or. 742, 750-752, 525 P.3d 451, 456-458 (2023) (“The substantial factor test was developed primarily for … the situation in which the concurrent conduct of two or more causes combine to create an injury, and either one of those causes, operating alone, would have been sufficient to produce the same result.”; However, that does not mean that “the substantial factor standard applies, and consequently that a substantial factor instruction should be given, in all multiple tortfeasor cases,” or that “the substantial factor standard rather than the but-for standard applies in all instances in which there are multiple tortfeasors.”).
Monday, May 15, 2023
McDonald's and a Florida franchisee are liable for a chicken mcnugget burning the thigh of a four-year-old girl in a 2019 incident. A mother testified she bought chicken mcnuggets and passed them to her children in the back seat. Shortly thereafter, she heard the screams of her then-four-year-old daughter, who had second-degree burns on her leg. The argument, reminiscent of the Liebeck case, was that the food was too hot. There was a factual dispute about the temperature of the mcnugget. Plaintiffs' lawyers claimed the mcnugget was over 200 degrees; defense lawyers claimed it was no more than 160 degrees. A jury found the franchisee liable for negligence and failure to warn customers about the risk of hot food. As to McDonald's USA, the jury found it liable for failure to provide instructions for the safe handling of food, but not liable for negligence or defective products. A separate jury will assess damages. Thanks to Cinthia Chou Chan for the tip. The story is here.
Monday, May 1, 2023
A recent NYT piece found a substantial racial gap in pedestrians and cyclists killed on roadways. Black people were more than twice as likely, for each mile walked, to be killed as white pedestrians. Black cyclists had a fatality rate 4.5 times that of white cyclists. Infrastructure is the likely culprit. Thanks to Leslie Kendrick and John Goldberg for the tip. The story (behind a paywall) is here.
Saturday, April 22, 2023
A California woman injured while using Tesla's Autopilot mode sued Tesla for a design defect in Autopilot and the car's air bags. Tesla defended its product, stating that the user manual warned the plaintiff about using Autopilot on city streets, which is where the accident occurred. A jury awarded the plaintiff $0 in damages, found that the air bags were not defective, and found that Tesla did not intentionally fail to disclose facts. Reuters has the story. Thanks to Nima Bencohen for the tip.
Sunday, April 9, 2023
Scholars of tort law and statutory interpretation filed an amicus brief in the Third Circuit appeal of NSSF v. Platkin—a case brought by the firearms industry’s trade association against the Attorney General of New Jersey to prevent enforcement of New Jersey’s new firearms nuisance statute. The industry argues that the Protection of Lawful Commerce in Arms Act bars lawsuits under the new law. The legal scholars’ brief argues that New Jersey’s law is precisely the type of state regulation of gun sales contemplated by PLCAA’s predicate exception. The brief is here.
Thursday, January 26, 2023
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.
Tuesday, December 27, 2022
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  UKSC 21,  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.
Thursday, December 15, 2022
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.
Monday, December 12, 2022
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.
Friday, December 2, 2022
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.”
Monday, November 7, 2022
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)
Sunday, October 16, 2022
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.
Monday, September 26, 2022
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).