TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, October 24, 2014

Eric Andrist: Pro-Prop 46



Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.

Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.

Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died.  After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at

But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.

It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).

Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.

I don’t blame them. I blame the law that put them in that position in the first place.

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October 24, 2014 in Current Affairs, Guest Blogger, Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Thursday, October 23, 2014

Debating Prop 46

One of the biggest events in tort law this fall is Prop 46, the California ballot initiative over whether to raise the MICRA cap on non-economic damages in med mal cases (set in 1975 at $250,000 and not raised since).  I have contacted both pro- and anti-Prop 46 spokespeople and asked them to write a post supporting their respective positions.  Eric Andrist is a leading voice in the pro-Prop 46 movement.  His post will appear tomorrow.  I have reached out several times to the California Medical Association, and I am still hoping to receive a post from them.

October 23, 2014 in Current Affairs, Guest Blogger, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2014

Coomer v. Kansas City Royals Decided

On Tuesday, the Supreme Court of Missouri issued an opinion in Coomer, the case of the fan injured by a flying hot dog.  The court ruled that getting hit with a hot dog is not an inherent risk of baseball and the trial judge should not have allowed an assumption of risk instruction.  The opinion is here.  Alberto Bernabe, who has followed the case, has comments here.  Michael McCann wrote a guest post for TortsProf in 2010 that foreshadowed the holding.


June 27, 2014 in Food and Drink, Guest Blogger, Sports | Permalink | Comments (0) | TrackBack (0)

Friday, April 26, 2013

Guest Blogger Max Kennerly: "The Danger of Assuming Judicial Omniscience in Tort Law"

When Chris invited me to write a guest post for TortsProf, I already knew what I was going to write about: how the courthouse doors were being increasingly closed on tort plaintiffs by way of procedural changes, to the point that, in many contexts, civil procedure law was more determinative of the outcome of tort disputes than substantive law. Between the time I came up with my article, however, and the time it was due, civil procedure Professor Arthur Miller published his new article, “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.”

Talk about being preempted.  

Professor Miller’s article is, unsurprisingly, thorough and erudite, covering the last thirty years of changes — the majority of them made out of whole judicial cloth — in the law applicable to procedural issues like summary judgment, class action certification, arbitration, pleading, jurisdiction, and discovery, all of which greatly benefitted defendants in tort lawsuits, particularly well-financed corporate defendants. I do not mean to repeat Professor Miller's arguments, nor to rehash the many arguments made by consumer and civil justice advocates against these recent developments (I’ve made many similar criticisms before), but to address them from the perspective of, shall we say, epistemology. 

Society develops its laws by making choices about public policy, both choices about who should prevail in a given hypothetical where the facts are known, and choices about whom we favor when the true facts are unsettled, unknown, or unknowable. For example, in criminal prosecutions, we in theory demand considerable certainty — “beyond a reasonable doubt” — before permitting a conviction, in part because we claim to adhere to Blackstone’s formulation that “it is better that ten guilty persons escape than that one innocent suffer.” Blackstone’s formulation is itself an expression of the belief that, where there is a reasonable possibility that an element of the crime is not truly
known, we will favor the defendant. 

For decades, tort law has been discussed as the rules we follow to decide when one party must pay for the injuries suffered by another. With the growing influence of civil procedure and evidentiary rules in tort litigation, and the growing cost of litigation (which affects plaintiffs just as much, if not more, than defendants) the real question in tort law that determines cases today is decreasingly a question of when one party will be liable to another and increasingly a question of when we allow an injured party to access the judicial system at all. The above procedural changes noted by Professor Miller are not mere alterations to the process by which a party brings their civil dispute to the court and presented to a jury; they are routinely outcome determinative.

The Federal Rules of Civil Procedure and of Evidence do not contemplate any circumstance in which a plaintiff with a potentially meritorious claim with unsettled facts is dismissed before trial, and yet tort litigation –— including nationwide multidistrict litigation involving thousands of claimants, billions of dollars in damages, and significant factual disputes — is routinely dismissed in advance of trial on the basis of factual determinations made by judges about what is known, unknown, or unknowable.

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April 26, 2013 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

Tomorrow's Guest Blogger: Max Kennerly


Max Kennerly has successfully represented a wide variety of injured clients, from the parents of an 18-year-old who needlessly died during liposuction (a case that required a five week trial in 2008, resulting in a $20.5 million jury verdict, including the largest punitive damages ever awarded in a Pennsylvania medical malpractice case), to a baby boy injured at birth by a hospital that refused to perform a c-section for hours and so developed cerebral palsy, to the estate of a 19-year-old woman killed by a fatigued truck driver who was encouraged by his employer to fabricate his log book so he could spend more hours on the road. Max has also successfully represented a number of individuals and businesses with financial damages, including a homeowner whose mortgage company failed to properly search the title of her home and a small electronics business defrauded by a wealthy former contractor. As of 2012, in addition to his personal injury and medical malpractice work, he represents dozens of clients with product liability lawsuits arising from the Actos, Pradaxa, and implanted mesh erosions litigations.

The law isn’t just a job for Max, it’s a profession, and he devotes substantial time and energy to pro bono efforts and to educating lawyers and non-lawyers about the law. Max has several times appeared on the Philadelphia Court’s Pro Bono Honor Roll for his volunteer service. One of his passions is writing, and so he spends a lot of time informing the public about the law on his Litigation & Trial blog and through contributions to non-legal publications such as Emergency Physicians Monthly, where he debated a physician about malpractice issues, and NYC Aviation, where he discussed the Reno Air Races disaster. He has been referenced as a legal analyst in publications like The New York Times, The Atlantic and Business Insider. Most recently, he was quoted by the Philadelphia Daily News / WHYY’s ”It’s Our Money” project discussing Occupy Philadelphia, cited by Vanity Fair discussing the Facebook ownership lawsuit from The Social Network, and quoted by Reuters news discussing the Penn State child abuse scandal.

Within the law, Max was selected by his peers to be included in Super Lawyers magazine as a Pennsylvania Rising Star. He has also taught Continuing Legal Education seminars for the Pennsylvania Bar Institute,  has contributed to legal publications such as The Jury Expert, and has been quoted by publications like Inhouse Counsel and the American Association for Justice’s Trial magazine.

Max also wrote one legal book with Jim Beasley, Jr., a guide for civil lawyers in Pennsylvania, that was published earlier this year, and is working on another one (also with Jim) for civil lawyers nationwide, due in another two years.

Max graduated from Yale University with Honors in History and from the Beasley School of Law at Temple University as a Law Faculty Scholar and a member of the Rubin Public Interest Society. At Yale he wrote an award-winning paper on the history of the Federal Reserve. At Temple Law he was a Teaching Assistant in Constitutional Law for Dean Robert Reinstein and a clerk in the Federal Court Clerkship Clinical program.

April 25, 2013 in Guest Blogger | Permalink | Comments (0)

Thursday, April 18, 2013

Tomorrow's Guest Blogger: John Hochfelder

JMH NewerPhoto

John M. Hochfelder is a traumatic injury trial lawyer in the New York City metropolitan area and Hudson Valley region. His career began as a law clerk to a federal judge in the U.S. District Court  (S.D.N.Y.) after which he was a commercial litigator in a large Manhattan law firm. He's been a local court judge, an EMT and now, in addition to his personal injury law practice he publishes the widely read and acclaimed New York Injury Cases Blog where Mr. Hochfelder reports on and analyzes all New York appellate cases that rule on damages.

April 18, 2013 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Friday, April 5, 2013

Daniel Cummins: "A Maze of Uncertainty: PA Products Liability Law Remains in a Confusing State of Flux"

          As of the writing of this article in January of 2013, confusion is reigning in the Commonwealth of Pennsylvania on the uncertain issue of whether the Restatement (Second) of Torts or the different analysis set forth in the Restatement (Third) of Torts should be utilized in Pennsylvania products liability cases.  This uncertainty is the result of an ever-growing split of authority not only between the Pennsylvania state and federal courts, but also among, and even within, the different federal district courts across the Commonwealth.

          The situation has now spiraled downward to the point that litigants with cases pending in the Pennsylvania federal court system have to research whether the particular federal district court judge presiding over the case has previously issued a decision on the issue in order to determine which Restatement standard will be applied in that case.   While one Pennsylvania federal court judge has politely noted that this area of the law in Pennsylvania is in a “state of flux,”[1]   See Sikkelee v. Precision Automotive, Inc., 876 F. Supp. 2d 479, 489 (M.D. Pa. 2012 Jones, J.). another has more aptly described Pennsylvania products liability law as being “a maze of uncertainty.”[2]  See Samson v. Crown Equipment, 2:10-CV-0958, 2012 WL 3027989 (W.D. Pa. 2012 Hornak, J.). 

          Which standard is applied could make or break a case.  Although the Restatement (Second) favors strict liability concepts over negligence principles in the products liability context, the Restatement (Third) decreases the impact of concepts such as "intended use" and "intended user" and places a greater emphasis on the negligence principle of "reasonable foreseeability."   All of these changes in the Restatement (Third) arguably shift the balance in favor of manufacturer defendants in personal injury cases based upon allegations that a defective product was the cause of the injury.

          As noted below, under the current status of Pennsylvania products liability law, whether the case will be governed by the Restatement (Second) of Torts or the Restatement (Third) of Torts depends upon whether the case is in state or federal court, and if the case is in federal court, the answer may further depend upon which particular federal district court judge is presiding over the case.

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April 5, 2013 in Guest Blogger, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, April 4, 2013

Tomorrow's Guest Blogger: Daniel Cummins


Daniel E. Cummins, Esquire is a partner in Foley, Comerford & Cummins in Scranton, PA with over 15 years of insurance defense experience.  Cummins has focused his practice on defending motor vehicle accident liability cases and UIM/UM arbitration matters along with premises liability and products liability cases.  Heis also routinely summoned by his clients to handle matters involving insurance coverage questions and insurance subrogation claims.

Cummins is a cum laude graduate of Villanova University (’90, B.A., English) after which he attended the Dickinson School of Law (’93, J.D.) and completed his law school studies at the University of London Faculty of Laws in London, England (Spring, ’93).

Cummins is an award-winning columnist for, among other publications, Pennsylvania Law Weekly.  He blogs regularly at Tort Talk and has been named a "Lawyer on the Fast Track" and a "Super Lawyer-Rising Star."

April 4, 2013 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Friday, March 29, 2013

Alberto Bernabe: "Play Ball!...and Change the Approach to Baseball Torts"

          As the spring approaches, the attention of many sports fans turns to baseball.  Fans are looking forward to the beginning of the major league season.  Parents (including myself) are starting to take their kids to little league practice.  Baseball.  It is the great American pastime.  It is also the source of a lot of interesting litigation that brings into question some basic principles of tort law.

          Many baseball related cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the poorly chosen term “primary assumption of the risk.”  Unfortunately, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.

          Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.

          In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury.  In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game.  Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims.  

          I think those arguments miss the point.  Granted; risk, danger and injuries are a part of life, and of baseball.  However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with.  You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.   

          The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity.  We have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection.  That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.

          Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases.  On the other hand, I am sure it is not true in all cases, and it is those cases that matter.

          The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.

          The cases involving spectators are even more problematic.  

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March 29, 2013 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, March 21, 2013

James Beck: "Using Reott's Shiny New Strict Liability Defense"

          In Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012), the Pennsylvania Supreme Court once again dodged the existential question of Second versus Third Restatement, because the plaintiff’s manufacturing defect claim was subject to a “strict” liability standard even under the Third Restatement.  See Id. at 1101-02 (Saylor, J. concurring) (discussing how “strict products liability was originally fashioned with manufacturing defects in mind”).  Instead the court addressed, for the first time, the role that plaintiff conduct played in proof of causation in a strict liability case under Restatement (Second) of Torts §402A (1965).

          In Reott the product, a tree stand intended as a hunter’s aerial perch, was manufactured without its proper double stitching.  When the plaintiff attempted to “set” the tree stand (remove slack from the straps) by bouncing on it, the stand collapsed and the plaintiff fell to the ground.  55 A.3d at 1090-91.  At trial, the plaintiff received a directed verdict on the manufacturing defect, which was essentially uncontested.  Id. at 1091. The defendant contested causation, arguing that the plaintiff’s method of setting the tree stand, not the defect, had caused the accident.  Id.  The plaintiff claimed that under strict liability, all evidence of his conduct was inadmissible.  The trial court allowed the jury to consider the plaintiff’s conduct as evidence of causation:

The court . . . permitted that question [causation] to go to the jury.  [Defendant] presented evidence to the jury that [plaintiff’s] self-taught “setting the stand” maneuver constituted highly reckless conduct, which negated . . . the defect in the [product]. . . .  [T]he jury returned a verdict in favor of [defendant].

Id.  The Superior Court reversed, holding that “the evidence introduced at trial was insufficient as a matter of law to support [defendant’s affirmative defense of highly reckless conduct.  Id. at 1093.

          At the Supreme Court, plaintiff argued that in strict liability, it was error to introduce evidence of plaintiff conduct – since comparative negligence was not a defense – even on the question of causation.  The Supreme Court, disagreed and for the first time held that there are circumstances under which plaintiff conduct is admissible in strict liability.

          The defense that the Supreme Court recognized, which had been sporadically permitted in intermediate appellate decisions for decades, was more stringent than mere comparative fault.  First of all, it is an affirmative defense upon which the defendant bears the burden of proof:

[W]e hold that a defendant in a Section 402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted.

Reott, 55 A.3d at 1101.  As an affirmative defense, highly reckless plaintiff conduct must also be pleaded.  Id. at 1100.

          Second, the defense is similar to assumption of the risk (although lacking the element of subjective understanding), in that the “highly reckless” conduct must – if believed by the jury – amount to the “sole cause” of the accident:

This accepted definition of highly reckless conduct exemplifies that a defendant can affirmatively plead and prove “sole cause,” i.e., that a curing of any defect would not have prevented the injury because only the plaintiff's conduct caused the injury; or “superseding cause,” i.e., that the plaintiff acted in such an outrageous and unforeseeable fashion that the conduct superseded any “but for” or legal causation the product contributed to the injuries.

Id. at 1100.  “[B]ecause highly reckless conduct, by its very nature, is that which is essentially unforeseeable and outrageous, if it truly exists in a case, it must be the cause of the injuries sustained.”  Id. at 1101 (emphasis added).

          The Court justified its relatively strict version of a causation defense in strict liability as a way to prevent defendants from turning it into the equivalent of the now-prohibited defense of comparative/contributory fault:

[U]nder Pennsylvania's scheme of products liability, evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence with affirmative proof that a plaintiff's assumption of the risk, product misuse, or, as styled herein, highly reckless conduct was the cause of the injury. Indeed, without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate [strict liability] by demonstrating a plaintiff’s comparative or contributory negligence.

Id. at 1098.  Practically as an afterthought, the Court affirmed, on grounds that the evidence did not establish the defense (there being no proof that a non-defective stand would have collapsed in a similar manner).  Id. at 1101.

          Thus, after Reott defendants now have an affirmative causation defense, based on the plaintiff’s “highly reckless” conduct, in strict liability cases.  To the extent it can make out a jury submissible case, the defense can introduce such conduct by the plaintiff.  The question thus arises, what kind of conduct can meet that test.  The most immediate answer lies in prior precedent, and not just cases asserting reckless conduct in the lower courts.  Given similarities that the Court noted between reckless conduct, superseding cause, and product misuse, conduct creating any of these defenses probably creates them all.

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March 21, 2013 in Guest Blogger | Permalink | Comments (2) | TrackBack (0)

Wednesday, March 20, 2013

Blogger Guest Blogger Series

Starting tomorrow, we begin a series for guest bloggers who already blog on torts at other sites.  We have a nice mix of plaintiff-oriented and defense-oriented bloggers.  The posts will always appear on Fridays, but not necessarily consecutive Fridays.  Enjoy!


The first in the new guest blogger series is authored by James Beck of Drug and Device Law Blog.  Beck is counsel in Reed Smith's Philadelphia office.  He handles complex personal injury and product liability litigation. He has overseen the development of legal defenses, master briefs, appellate briefs, and dispositive motions in numerous high-profile mass torts.  He has also filed more than 60 appellate amicus curiae briefs, mostly on product liability issues.  In 2011, he received the Product Liability Advisory Council's John P. Raleigh Award, the highest honor given to an organization member. He is the lead author of the ALM treatise Drug and Medical Device Product Liability Litigation Deskbook.  Since 2006, Mr. Beck has been the lead blogger and co-host of the "Drug and Device Law Blog," which has been awarded the ABA's "Top 100" legal blog status for each of the last four years.


March 20, 2013 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Sunday, March 17, 2013

Leslie Kendrick: "The Impossibility of Impossibility Preemption"

          When the Supreme Court hears oral argument in Mutual Pharmaceutical Co. v. Bartlett, it will embark on its third elaboration of “impossibility preemption” in the prescription-drugs context.  This line of cases is reshaping preemption doctrine, and it is doing so with little regard for a basic legal idea: the distinction between a property rule and a liability rule.

          The question at issue is whether it is “impossible” for prescription drug manufacturers to comply with both Food & Drug Administration requirements and state tort law.  State tort liability for design defect or failure-to-warn is predicated on a judgment that a drug or drug label was not designed safely.  But manufacturers generally cannot alter drugs or labels without FDA approval.  Thus, manufacturers argue, it is impossible for them to comply with both tort law and FDA requirements.

          The Supreme Court implicitly accepted this view in 2009’s Wyeth v. Levine, when it found no impossibility preemption of a failure-to-warn claim against Wyeth.  The Court rested this conclusion on the view that, under FDA regulations, Wyeth could have changed its drug’s warning label without prior FDA approval.  Wyeth thus could have avoided tort liability while complying with FDA rules. 

          This analysis was always dubious: labeling changes ultimately require FDA approval, and thus a manufacturer’s power to make unilateral changes is short-lived and mostly hypothetical.  But there soon arose a side effect which the majority in Wyeth, led by Justice Stevens, surely neither foresaw nor intended.  To the extent that the power to make unilateral changes exists at all, it is enjoyed only by brand-name manufacturers and not by makers of generic drugs.

          Thus when, in PLIVA, Inc. v. Mensing, the manufacturer of a generic drug made an impossibility preemption claim, the Court sprang the trap it had set in Wyeth.  If impossibility was avoided only to the extent that manufacturers could change their labels, then impossibility must exist with respect to generic drugs.

          In Mutual Pharmaceutical Co. v. Bartlett, the Court is being asked to extend this analysis to preempt some suits against generic manufacturers for design defects.  And the United States, for its part, appears to ask the Court to feel free to endorse this rule for all design-defect claims, for both generic and brand-name drugs, on the theory that no manufacturer can alter the substance of its drug without FDA approval.  What started as a ground for rejecting preemption in Wyeth is now poised to eliminate virtually all tort liability for prescription drug manufacturers, all in the name of “impossibility.” 

          But if we know one thing about tort law, we know that it is not impossible to comply with it and FDA requirements simultaneously.  We know this because drug manufacturers have been complying with both since the passage of the Federal Food, Drug, and Cosmetic Act in 1938.   

         Moreover, anyone briefed in the most basic attributes of tort liability and FDA regulation can explain why.  Tort liability requires manufacturers to pay damages, not to alter their products.  A manufacturer may market a drug as approved while paying tort damages.  The manufacturer has other options, such as seeking to modify a drug or label, or developing improved products.  But it is entirely possible to change nothing and comply with both sets of laws.

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March 17, 2013 in Guest Blogger, Products Liability | Permalink | Comments (1) | TrackBack (0)

Guest Blogger Leslie Kendrick


Today's Guest Blogger is Leslie Kendrick, an Associate Professor at the University of Virginia School of Law.  Kendrick received a B.A. in classics and English as a Morehead Scholar at the University of North Carolina at Chapel Hill. She received her master's and doctorate in English literature at the University of Oxford, where she studied as a Rhodes Scholar. In law school she served as essays development editor for the Virginia Law Review and received numerous awards, including the Margaret G. Hyde Award, the Hardy Cross Dillard Scholarship, the Law School Alumni Association Best Note Award, the Brown Award for Excellence in Legal Writing, the Food & Drug Law Institute H. Thomas Austern Short Paper Award, and the Virginia State Bar Family Law Book Award. Before joining the Virginia's faculty, Kendrick clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and for U.S. Supreme Court Justice David Hackett Souter.  She is currently visiting at UCLA.

March 17, 2013 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Friday, December 21, 2012

Nora Freeman Engstrom: Damage Caps--And Why Fein May No Longer Be Good

Stanford's Nora Freeman Engstrom reconsiders MICRA and its constitutionality (pdf):  Download Torts Prawf Blog -8.

December 21, 2012 in Guest Blogger, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

Tomorrow's Guest Blogger: Nora Freeman Engstrom


Nora Freeman Engstrom is an Associate Professor at Stanford Law
School.  Professor Engstrom’s scholarship lies at the intersection of
tort law and professional ethics, and her current work explores the
day-to-day operation of the tort system and particularly the tort
system’s interaction with alternative compensation mechanisms, such as
workers’ compensation and no-fault automobile insurance.  Professor
Engstrom has also written extensively on attorney advertising and law
firms she calls “settlement mills”—high-volume personal injury law
practices that heavily advertise and mass-produce the resolution of


December 20, 2012 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, May 16, 2011

Guest Blogger Robert Rabin: "The Legacy of New York Times v. Sullivan: Time for a Reassessment?"

A soldier is killed in Iraq, serving his country; his grieving father arranges a funeral service and burial in the nearby cemetery of their hometown church; a publicity-seeking religious sect, dedicated to hateful religious and homophobic disparagement, as well as denigration of the U.S. government and its military efforts, pickets the funeral service. Due to this arresting set of factual circumstances, Snyder v. Phelps, an intentional infliction of emotional distress claim by the dead soldier’s father against the leader and members of the sect, was afforded considerable media attention—triggering widespread outrage in support of the victimized father. Despite the outpouring of sympathy, however, when the case reached the U.S. Supreme Court, the Circuit Court of Appeals decision overturning a jury verdict in favor of the plaintiff was affirmed, 8-1, on First Amendment grounds, Snyder v. Phelps, 131 S.Ct. 1207 (2011).

 Snyder is, in fact, an easy case, in my view. When an individual or organized group engages in speech about a matter of public concern, the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) has generated more than a half-century of precedent standing for the proposition that tort victims’ common law rights are substantially limited. The authority of Times—the power of its articulation of the values promoted by free and robust public discourse—has spilled beyond the borders of that Civil Rights-era defamation claim by southern officials against a widely-respected national newspaper to related tort areas of protection of personality: privacy (Time, Inc. v. Hill, 385 U.S. 374 (1967)) and intentional infliction of emotional distress (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).

 Snyder is firmly in that tradition—and it is an easy case because it does not test the limited categories of tort that survive Times restrictions: fighting words and personally threatening harassment. But if that is all one should read into Snyder, the case is of little consequence. On the other hand, if it signals a corrective in the understanding of Times, which went off-course, as I see it, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that is another matter.

 Gertz, which involved allegations of a communist plot to promote claims of police brutality—allegations clearly within the zone of political discourse on a matter of public concern—shifted the focal point of inquiry from the content of defendant’s speech to the status of the victimized plaintiff (in particular, whether plaintiff was a “private figure” or not); providing lesser protection of a defendant’s speech in the latter category of cases. This was, in fact, a sharp divergence from the spirit of Times; in particular, promoting a marketplace of discourse on public issues as central to the meaning of a democratic society.

 Moreover, Gertz rested on insubstantial foundations: the conclusory rationale that “public officials” and “public figures” assumed the risk of defamatory statements by participating in public affairs; and the dubious proposition (treated almost apologetically in a Gertz footnote) that public figures could neutralize defamatory statements by their access to media forums. Whatever the questionable earlier salience of this distinction between public and private figure access to forums of retaliatory speech, in the online era of blogs and Facebook, it is now highly anachronistic.

 But does Snyder in fact signal a revival of the foundational premise of Times protection of speech on matters of public concern? The majority opinion’s invocation of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), emphasizing the purely private nature in that case of defendant’s incorrect attribution to plaintiff of a bankruptcy petition, as a point of contrast from the political protest involved in Snyder (and the concomitant failure to even mention Gertz or private figure considerations in the Snyder opinion), possibly points in that direction.

 And suppose that the Court were to resurrect the promotion of the public marketplace of ideas as the core meaning of Times: Would that signal the demise of unencumbered protection of personality-based tort claims? Not at all. Take as a single example (of many that might be offered), Johnson v. Johnson, 654 A.2d 1212 (R.I.1995), in which an ex-husband loudly proclaimed in a restaurant setting and in the presence of his ex-wife, that she was a whore. Quite correctly, in my view, the Rhode Island court dispatched the First Amendment claim as a defense to the ex-wife’s tort claim. There remains not the slightest reason for affording constitutional protection to the defendant’s indifference to the feelings of the victim in such a case, when it rises to the level of outrageous breach of norms of civility. If Snyder turns out to be a first step towards a revival of a public/private subject matter focal point, then it will stand as an easy case with substantial consequences.

--Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School

May 16, 2011 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Saturday, May 14, 2011

Monday's Guest Blogger: Robert Rabin

Robert L. Rabin is the A. Calder Mackay Professor of Law at Stanford.  An expert on torts and legislative compensation schemes, Robert Rabin is highly regarded for his extensive knowledge of the history and institutional dynamics of accident law. He is a prolific author on issues relating to the functions of the tort system and alternative regulatory schemes and is the co-editor of a classic casebook on tort law.

Professor Rabin is currently an advisor to the ongoing American Law Institute Restatement of Torts Third project and has been the program director for the Robert Wood Johnson Foundation Program on Tobacco Policy Research and Evaluation, as well as a reporter for the American Law Institute Project on Compensation and Liability for Product and Process Injuries and the American Bar Association Action Commission to Improve the Tort Liability System. He has been a member of the Stanford Law School faculty since 1970.

May 14, 2011 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, April 25, 2011

Guest Blogger Ellen Bublick: "The ALI, Economic Loss Rules, and Convergence"

          In just a few weeks time the American Law Institute’s annual meeting will consider Chapter 10 of the Restatement Third of Torts: Liability for Physical and Emotional Harms.  That chapter, entitled Liability of Those Who Hire Independent Contractors, ably drafted by reporter Ellen Smith Pryor of Southern Methodist University’s Dedman School of Law, is now a tentative draft for approval of the membership. Once approved, the ALI will publish the second volume of the Physical and Emotional Harms Restatement, and torts restatement work will move on to engage issues beyond physical harm.  Next up: the Restatement Third of Torts: Economic Harms and Related Wrongs. Notably, this September, meetings will commence on the restarted project under the leadership of new Reporter Ward Farnsworth of Boston University School of Law.  Looking forward to that work, I commend to torts professors two recent state supreme court cases written by outstanding jurists actively engaged with the issue of liability for economic loss. 

          The first case, from my own home state, is Flagstaff Affordable Housing Limited Partnership v. Design Alliance, Inc., 223 P.3d 664 (Ariz. 2010).  In Flagstaff Affordable, architects designed eight apartment buildings and a community center for a low income housing project.   Eight years after construction was complete, the U.S. Department of Housing and Urban Development filed a complaint that the buildings did not comply with Fair Housing Act accessibility guidelines. The building owner settled with HUD, made revisions to its properties, and filed suit against the architects for economic loss stemming from the misdesign and  remediation.

          The second opinion, Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010), was issued by the Indiana Supreme Court.  In Indianapolis-Marion County Public Library the library hired a general contractor to renovate and expand the library.  The general contractor subcontracted with engineers who provided architectural and engineering services for the project.  After the construction had progressed significantly, concerns were raised about the structural integrity of the project.  The library spent 40 to 50 million dollars to cure these structural defects and in turn filed suit against the engineers for the damages. 

          Both cases involve factually similar causes of action: professional failures in building design led to significant costs incurred by the parties that had undertaken the construction projects. In both cases the outcome was similar—state supreme courts disallowed recovery in tort for the owners’ purely economic losses that stemmed from professional negligence.  And in both cases, economic loss rules took center stage in the reasoning.  However, the analysis in the two cases proceeds along quite different lines.

          The Arizona Supreme Court criticized an “overly broad” formulation of the doctrine and noted the availability of recovery for solely pecuniary loss in a number of contexts.  It differentiated between economic loss in contractual settings and non-contractual cases, and resolved to attend to the need for limitation on recovery for pure economic loss “based on context-specific policy considerations,” in that case the context of construction contracts. The Indiana Supreme Court, on the other hand, adopted a very broad formulation of the economic loss rule—viewing the economic loss rule as a general no-duty rule, subject to context-specific exception. As the Indiana Supreme Court stated, “[O]ur default position in Indiana is that in general, there is no liability in tort for pure economic loss caused unintentionally.”  However, the court then noted that this general rule is subject to appropriate exceptions “such as (for purposes of illustration only) lawyer malpractice, breach of duty of care owed to a plaintiff by a fiduciary, breach of a duty to settle owed by a liability insurer to the insured, and negligent misstatement.”  Negligent misstatement of an engineer who was party to a web of contracts in which the plaintiff was also a party was not an exception (though in a related case, negligent misrepresentation was actionable to a nonparty to the contract).

          This dispute about starting points—the economic loss rule as an overarching no-duty default limitation from which courts can recognize exceptions or economic loss rules as prudential limits embedded in the duty or scope of liability questions in particular contexts­—hearkens back to a dispute in the first round of Economic Torts Restatement discussions and will no doubt need to be addressed anew this fall.  But as significant as the mode of analysis of these issues is the substantive outcome of the analysis in particular cases.  One might have thought that Restatement Second Section 552 which governs “information negligently supplied for the guidance of others” would have afforded tort recovery in both the Arizona and Indiana cases, and indeed in some similar cases from other jurisdictions, such as Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa 2005), section 552 was invoked to support recovery for architect misrepresentations that resulted in economic loss to a builder. The discordant analysis of these questions among state courts hints at the importance of restatement work. A fascinating empirical paper by Anthony Niblett, Richard A. Posner, and Andrei Schleifer, The Evolution of a Legal Rule 39 J. Legal Stud. 325 (2010), examines the question of whether the law in the area of economic loss in construction contexts is converging to an efficient result, and then stops at the more basic question of whether the law is converging at all. The conclusion to date is that perhaps it is not.  Although few forces unify state tort law, the American Law Institute’s Restatement of Torts is one of the most important, particularly in the area of economic torts. As judges, practitioners and scholars converge to discuss liability for economic loss under the project, one hope is that some convergence of state legal rules will be nearer at hand as well. 

--Ellen Bublick, Dan B. Dobbs Professor of Law, University of Arizona College of Law



April 25, 2011 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Sunday, April 24, 2011

Monday's Guest Blogger: Ellen Bublick


Ellen Bublick is the Dan B. Dobbs Professor of Law at the University of Arizona, James E. Rogers College of Law. She served as the 2008-2009 Chair of the Torts and Compensation Section of the Association of American Law Schools, and currently serves as an Advisor to the American Law Institute’s Restatement Third of Torts. She is a coauthor of the leading tort law treatise The Law of Torts (2d ed. forthcoming 2011), with Dan Dobbs and Paul Hayden, and is a coauthor of the sixth edition of the popular casebook Torts and Compensation: Personal Accountability and Social Responsibility for Injury.  Her other books include Cases and Materials on Advanced Torts: Economic and Dignitary Torts—Business, Commercial and Intangible Harms (with Dan B. Dobbs), and A Concise Restatement of Torts (2d edition) on behalf of the American Law Institute. She has participated in national and international symposia on U.S. Tort Law, Foreign Tort Law, the Restatement of Products Liability, and the Restatement of Liability for Physical Injury among other topics. On the basis of her research, Bublick has been invited to speak to audiences which include the National Institute of Justice, the Pennsylvania House of Representatives, the Research Center for Civil and Commercial Jurisprudence of the People’s Republic of China, and the European Group on Tort Law. One of her innovative legal theories was expressly adopted by the Washington Supreme Court in Christensen v. Royal School Dist. No, 160, 124 P.2d 283 (2005). An honors graduate of Duke University and Harvard Law School, Bublick clerked for Judge Walter Cummings on the Seventh Circuit Court of Appeals and practiced law at Mayer, Brown & Platt in Chicago before entering academia.

April 24, 2011 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Sunday, April 17, 2011

Guest Blogger Geoffrey Rapp: "Liability for Batted Baseballs"

          In honor of opening day in Major League Baseball two weeks ago, I wanted to dedicate my post to the liability of stadiums for batted balls. 

          Across the land, courts deny recovery to baseball spectators hit by batted balls.  Like most torts professors, I teach this rule in my 1L class.  My casebook covers the rule in connection with the Jones v. Three Rivers Management Corp. case (which, interestingly enough, allowed recovery where a fan was injured due to the unusual architectural features of a brand-new stadium).

          A baseball exhibitor’s only legal duties are to screen the most dangerous areas of the park and to avoid distracting fans from the dangers of batted balls through overly aggressive mascots and other stimuli (sometimes).  Batted balls are an “expected” part of the game, and not a proper basis for a negligence claim absent unusual circumstances.  Even in some tragic and bizarre circumstances, such as when a young girl had her hand speared by a fragment of a broken bat, courts have denied recovery under some form of assumption-of-risk theory or limited-duty rule.

            Why should this well established rule be viewed as the correct one?  Who really loses if baseball operators were forced to pay judgments to injured fans?  Consider what would happen if the rule were abandoned.  Baseball operators would have two choices. 

          First, they could add more netting, Plexiglas barriers, and the like, to protect fans, or perhaps make baseballs more spongy and less likely to cause injury.  This would be a tragic result, no doubt, because fans like to watch the game as it has been played since the days of Abner Doubleday.  The chance to catch a batted ball is part of the “fun” associated with attending a baseball game, and can even be profitable for fans if the ball has historic value.  Similarly, more prominent and regular reminders of the dangers of flying objects, designed to alert fans, would be viewed by most fans as annoying.

          So instead, stadium operators would likely choose not to screen more seating or spongify baseballs.  What they would do is purchase broader liability insurance coverage, and pass the cost of such coverage on to fans in the form of higher ticket prices.  But isn’t that in fact the just result?  If fans want the game to be played the way it always has been, with its attendant risk of injury, should they not also be the ones forced to bear the cost of injury instead of visiting an “overwhelming misfortune” on a single injured spectator?  This loss-spreading rationale was the basis for the move to strict liability in products injury cases spurred by Justice Traynor’s concurring opinion in Escola v. Coca Cola Bottling Plant of Fresno California, and I can identify no reason why the principle should not also be applied in the stands.

          Yet baseball is so much a part of popular consciousness that courts prefer to have an injured spectator bear the risk of loss.  To be sure, baseball fans struck by balls while talking on their cell phones, like this Yankees fan unceremoniously caught on video, should, like drivers who decline to make their cars no-phone-zones, be assigned a fairly large share of the fault under comparative negligence.  But it seems to me that juries should be given the chance to weigh the impact of a fan’s inattention against the dangers to which stadium operates expose their audiences.

          For more on this topic, see 

Adam Epstein, Teaching Torts with Sports 

David Horton, Rethinking Assumption of Risk and Sports Spectators

Geoffrey Rapp, Take Me Out to the Ball Game, to be Injured, in New Mexico

Geoffrey Rapp, When Animals Attack…Are Baseball Stadiums Liable?


--Geoffrey Rapp, Professor of Law, University of Toledo College of Law

April 17, 2011 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)