Wednesday, October 30, 2019
At Notice & Comment, Bernard Bell has posted "Fortieth Anniversary: The Commerce Department’s Foray Into Re-Writing Products Liability Law," which describes the history of the Model Uniform Products Liability Act.
Tuesday, October 29, 2019
Conor Dwyer Reynolds has posted to SSRN The Role of Private Litigation in Automotive Recall Process. The abstract provides:
This Article presents an empirical perspective on the role of tort litigation in generating federal automotive recalls. It begins with a brief history of the American automotive recall process, beginning with the creation of the federal agency responsible for handling such recalls, the National Highway Traffic Safety Administration (NHTSA). It then details the contemporary automotive recall process, examining the administrative apparatus within NHTSA that investigates and orders recalls. Next, it provides the traditional view of private litigation's role in the automotive recall process, which sees private litigation's only role in the initiation of automotive recalls as creating the specter of post hoc liability for defect-related injuries. The heart of the paper tests this view by generating a dataset containing automotive recalls issued in 2014, coding each recall for the presence of defect-related litigation filed before the recall was initiated. The data, alongside narratives of each recall that coded positively for pre-recall litigation, demonstrates that the majority of vehicles recalled were preceded by defect-related litigation. This data an alternative view of private litigation's role in the automotive recall process, one that asserts the existence of a more direct, investigatory role for private litigators in initiating recalls.
Monday, October 28, 2019
California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages. The crucial language of S.B. 41 is:
Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.
Thanks to Nora Engstrom for the tip.
Thursday, October 24, 2019
From April 16 to April 18, 2020, the Institute for European Tort Law (ETL) and the European Centre of Tort and Insurance Law (ECTIL) will host the 19th Annual Conference on European Tort Law in Vienna. The Conference will highlight the main developments in tort law in Europe in 2019 and allow discussion of their implications.
On Thursday evening (April 16, 2020), the Conference will begin with an opening lecture by Michael Faure (Maastricht European Institute for Transnational Legal Research, Maastricht University), followed by a reception at the Austrian Supreme Court (Palace of Justice). On Friday (April 17, 2020), scholars from most EU Member States, plus Norway and Switzerland, will report on the latest developments in the field of tort law in their respective jurisdictions. A brief comparative overview of the principal themes to emerge and a presentation of developments at European Union level will also be provided.
The Conference will continue on Saturday morning (April 18, 2020) with a special session on ‘Liability for Digital Technologies’. In this special session, chaired by Bernhard A. Koch (Innsbruck), the panelists will discuss the risks of emerging digital technologies such as artificial intelligence, robotics, or the Internet of Things. Speakers will examine whether existing liability regimes are suitable to cope with the specific challenges posed by such new technologies, to what extent adjustments are necessary, or whether entirely novel solutions are needed. Recent developments on the EU level will be addressed in particular, including the recently published outcomes of the Expert Group on Liability for New Technologies.
Revised and expanded reports on developments in each jurisdiction will be published in the Yearbook ‘European Tort Law 2019’. Revised versions of the lectures from the Saturday morning session will be published as a special issue of the Journal of European Tort Law.
For more information: Download Announcement ACET 2020 (eng)
Wednesday, October 23, 2019
Anita Bernstein has posted to SSRN The Reciprocal of MacPherson. The abstract provides:
MacPherson v. Buick Motor Company won fame for taking down a privity barrier that stood between consumers and manufacturers of products that cause injury. Privity had offered liability-shelter to remote vendors; MacPherson destroyed that shelter when it held that nonprivy vendees have an entitlement to care and vigilance. In this relation of mutually constituted security and danger, privity and MacPherson are each the other’s reciprocal. This article, written to celebrate the centenary of a great decision, explores the reciprocity path that MacPherson helped to build by considering instances of law-mandated care and vigilance that came after it. Broadly worded obligations as provisioned in MacPherson function to support, or at least are consistent with, entitlements and shelters that business entities now receive from American consumers.
Tuesday, October 22, 2019
Behind an aggressive approach by Judge Polster of the Northern District of Ohio, the bellwether trial of Cuyahoga and Summitt (Ohio) counties against various manufacturers, distributors, and retailers of opioids has settled for $260M. The settlement has increased momentum for a grand resolution of all opioid claims at $48B, with talks to resume as early as today. Reuters has coverage here.
Monday, October 21, 2019
Christoph Busch has posted to SSRN When Product Liability Meets the Platform Economy: A European Perspective on Oberdorf v. Amazon. The abstract provides:
On 3 July 2019 the United States Court of Appeals for the Third Circuit handed down a ruling in the case Oberdorf v. Amazon which could have a seismic effect for online marketplaces on both sides of the Atlantic. The case not only puts a spotlight on how product liability law is applicable in the platform economy. It could also influence the broader transatlantic debate about the future of platform liability. This editorial for the Journal of European Consumer and Market law offers some European reflections on the Oberdorf case and its potential ramifications for the EU policy debate.
Thursday, October 17, 2019
Wednesday, October 16, 2019
Edward Janger & Aaron Twerski have posted to SSRN The Heavy Hand of Amazon: A Seller Not a Neutral Platform. The abstract provides:
Since the adoption of Section 402A of the Second Restatement of Torts, every party in a product’s distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed that they will have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With the exception of one court most courts have sided with Amazon and left injured consumers without a remedy against insolvent third-party sellers. All of the decided cases have failed to examine the nuances and complexity of how Amazon does business. This essay puts the lie to Amazon’s claim that it is not a seller by demonstrating how Amazon controls third-party sales and hides its true role from consumers.
Tuesday, October 15, 2019
I'm a bit late reporting this, but last week a Philadelphia jury awarded $8 billion in punitive damages to a man who alleged a drug manufactured by J&J caused him to grow breasts. The lawsuit claimed J&J was aware of the risk, but failed to warn physicians. In 2015, the plaintiff was awarded $680,000 in compensatory damages. Undoubtedly a challenge based on the ratio is forthcoming. America Now has details.
Monday, October 14, 2019
Congratulations to Ewa Baginska, the University of Gdansk, and the European Group on Tort Law for a successful and enjoyable conference on "Civil Liability and New Technologies" last week. Most of the presentations focused on liability for autonomous vehicles (there are relatively recent laws in the UK and Germany) and platforms such as Google, Twitter, and Facebook. Speakers included EGTL members Piotr Machnikowski, Bernhard Koch, Ken Oliphant, Ulrich Magnus, and me, as well as Constantijn Bakker (Amsterdam School of International Business) and Dorota Masniak (Gdansk). Some of the papers will appear in Insurance Review. The program is here: Download Civil liability and new technologies_program
Monday, October 7, 2019
Only 6 states (HI, MS, NM, NC, SD, and UT) continue to recognize the cause of action of alienation of affection between spouses, but North Carolina is the undisputed champion in terms of volume. A Pitt County, NC man sued his spouse's alleged lover in August 2017, two months after the couple separated. The couple divorced in September 2018 after 12 years of marriage. In August, a judge ruled the interloper--the spouse's lover--had to pay the former husband $750,000. This verdict is on the small side. A year ago, an interloper was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife. The ABA Journal has details.
Thursday, October 3, 2019
Sadly, we must share the news that our friend and colleague, Oscar S. Gray, passed away today (October 3) in New York City. Oscar, the Jacob A. France Professor Emeritus of Torts at the University of Maryland Carey School of Law, was one of the nation’s preeminent tort scholars from the 1970s until the time of his death. He published the second and third editions of the definitive six-volume treatise on tort law, Harper, James and Gray on Torts. He also was a co-editor of the influential torts casebook, Cases and Materials on Torts, along with Harry Shulman, Fleming James, Jr., and Don Gifford. During the mid-1990s, he served as chair of the AALS Section on Tort and Compensation Systems, and in 2010, he received the William L. Prosser Award for lifetime service from the section.
Oscar, a native of Maryland, attended Yale College from which he graduated Phi Beta Kappa. He decided to attend Yale Law School because, as he said in a 2011 interview, “law [is] a mechanism for bringing about social change, and … a way—perhaps the most striking way—of fighting for the righting of wrongs.” There he received, from Harry Shulman and Fleming James, Jr., what he described as “the best introduction to Torts I could have hoped for.” He also worked as a research assistant with Fowler Harper.
In the early 1950s during the anti-Communist hysteria of the McCarthy era, Professor Gray served as an attorney-adviser in the Legal Adviser's Office of the U.S. Department of State. Both in this role and when he applied for admission to the Maryland Bar, he was asked, but refused as a matter of principle, questions about his political beliefs or the people whom he knew. From 1957 until 1971, he became a vice president and director of a start-up company in the nuclear materials field. He later served the government as special counsel to the President's Task Force on Communications Policy and as acting director of the Office of Environmental Impact for the U.S. Department of Transportation where, as he later described it, he “had a dandy time trying to prevent roads from doing unnecessary environmental harm.”
As a result of this work, in the late 1960s, Oscar received offers to teach the newly developing subject, Environmental Law, at Georgetown and Catholic. While doing so, he assembled a casebook on environmental law because there were no commercial offerings in the field. In 1970, Georgetown Law School offered him a full-time faculty position teaching Torts. Oscar’s first step was to visit his own Torts teacher, Fleming James, at Yale to seek his suggestions regarding teaching torts. At the end of their encounter, Professor James asked Oscar if he was willing to coedit a new edition of the Shulman and James tort casebook and Oscar enthusiastically accepted the offer. A year or so later, Oscar joined James as a coeditor of the torts treatise. When asked in the 2011 interview what he regarded as his most important professional accomplishment, Oscar answered that it was “keeping alive the voices of Shulman and James, and Harper, so that they can continue to speak to new generations of students and scholars.” Oscar was extremely active in the activities of the American Law Institute and its drafting of the earlier parts of the Restatement (Third) of Torts.
In 1971, Oscar joined the faculty at the University of Maryland School of Law where he actively taught until 1996. To his colleagues, he was a steadfast figure of uncompromising integrity and commitment to scholarly excellence and precision in the use of language.
In 2018, Oscar celebrated fifty years of marriage with Dr. Sheila Hafter Gray, a leader in the psychoanalytic education and accreditation community. She survives him.
Despite his demanding scholarly agenda, Oscar was a huge fan of baseball and his Baltimore Orioles, through good times and bad. For decades, he “scored” each baseball game he attended with pencil and paper. He and Sheila also enjoyed chamber music and opera. Finally, Oscar was a serious wine collector.
Oscar Gray’s life will be celebrated at the University of Maryland Carey School of Law at a date and time to be announced later.
--Don Gifford and Chris Robinette
Daniel Solove and Paul Schwartz have posted to SSRN ALI Data Privacy: Overview and Black Letter Text. The abstract provides:
In this Essay, the Reporters for the American Law Institute Principles of Law, Data Privacy provide an overview of the project as well as the text of its black letter. The Principles aim to provide a blueprint for policymakers to regulate privacy comprehensively and effectively.
The United States has long remained an outlier in privacy law. While numerous nations have enacted comprehensive privacy laws, the U.S. has clung stubbornly to a fragmented, inconsistent patchwork of laws. Moreover, there long has been a vast divide between the approaches of the U.S. and European Union (EU) to regulating privacy – a divide that many consider to be unbridgeable.
The Principles propose comprehensive privacy principles for legislation that are consistent with certain key foundations in the U.S. approach to privacy, yet that also align the U.S. with the EU. Additionally, the Principles attempt to breathe new life into the moribund and oft-criticized U.S. notice-and-choice approach, which has remained firmly rooted in U.S. law. Drawing from a vast array of privacy laws and frameworks, and with a balance of innovation, practicality, and compromise, the Principles aim to guide policymakers in advancing U.S. privacy law.
Wednesday, October 2, 2019
Karen Sokol has posted to SSRN Seeking (Some) Climate Justice in State Tort Law. The abstract provides:
Over the last decade, an increasing number of path-breaking cases have been filed throughout the world seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the current climate crisis. This Article focuses on an important subset of those cases-namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change.
The Article begins with a synthesis of the history of U.S. climate tort litigation, grouping the cases into two "waves." The current state tort cases are in the second wave and represent an attempt to avoid the legal pitfalls that plagued the first. The Article then undertakes the first close examination of the defendants' response to the second-wave climate tort cases; namely, that federal common law preempts all the plaintiffs' state tort claims. Unsurprisingly, the issue has divided the courts that have decided it, as the Supreme Court caselaw is sparse and unclear. The Article identifies the doctrinal problem in the caselaw, and then argues that the only way to bring coherence to the law while adhering to federalism principles is to disallow preemption of state tort law by federal common law. Finally, the Article offers a new perspective on why that is also the right result as a policy matter.
The second-wave climate tort suits are part of larger global movement of resorting to the courts to demand climate justice that should be given a full hearing. The current era of climate disruption and its catastrophic threats demand not only new and improved legal and policy mechanisms, but also the use of current ones-including state tort law-to the fullest extent possible.
Tuesday, October 1, 2019
Barbara Billauer has posted to SSRN Re-Birthing Wrongful Birth Claims in the Age of IVF and Abortion Reforms. The abstract provides:
Claims for reproductive negligence typically fall under two rubrics. Claims by the wrongfully birthed child are almost never countenanced, while claims by the wronged parent generally are. Nevertheless, in these wrongful birth claims, usually recovery is strictly limited. While damages for rearing a child with congenital ailments may be allowed, those for raising healthy child are not. The bases for denying healthy child care are couched in policy grounds and derive from an anathema of abortion, a view of the sanctity of life and an outmoded judicial ipse dixit that child-rearing is one of life’s greatest gifts for which damages will not lie, even if such result shields a clearly negligent defendant. Here, I first point out that current vogue restricting abortion may have an adverse impact on efforts seeking to reverse this approach. I further argue that whatever gifts accrue to healthy child-rearing also may apply to non-healthy children, and the health or disability of the child should not be relevant to the outcome of these claims. And finally I propose a novel approach: broadening the damage ambit by noting that the birth of the child is not the only harm accruing to the parents. A court’s focus on only the birthed child and parents’ bliss in raising her ignores the impact of the negligence on the family unit as a whole, and on the parents as individuals and denies the individual plaintiffs their rights of autonomy, liberty and the pursuit of happiness.
Monday, September 30, 2019
In 1975, California enacted MICRA. Among other things, the law capped pain and suffering damages in med mal cases at $250,000. The cap has not been raised since. Back in 2014, California attempted a ballot initiative to raise the cap; it failed by a large margin. Now a couple whose infant daughter received a large med mal award that was significantly reduced by the cap has filed an initiative to update the cap by the amount of inflation, raising it to over $1.2M. The sponsors need to obtain the signatures of at least 5% of voters who cast ballots in the previous election for governor (623,000 signatures). In 2014, a coalition of medical groups spent nearly $60M to defeat the initiative. The leader of a consumer advocacy group stated he is counting on a progressive electorate in 2020, intent on defeating President Trump, to boost the initiative's chances. KTLA has details.
Wednesday, September 25, 2019
Alex Lemann has posted to SSRN Autonomous Vehicles, Technological Progress, and the Scope Problem in Products Liability. The piece is one of four in the "New Voices" symposium in the fall 2019 issue of the Journal of Tort Law. The abstract provides:
Autonomous vehicles are widely expected to save tens of thousands of lives each year by making car crashes attributable to human error—currently the overwhelming majority of fatal crashes—a thing of the past. How the legal system should attribute responsibility for the (hopefully few) crashes autonomous vehicles cause is an open and hotly debated question.
Most tort scholars approach this question by asking what liability rule is most likely to achieve the desired policy outcome: promoting the adoption of this lifesaving technology without destroying manufacturers’ incentives to optimize it. This approach has led to a wide range of proposals, many of which suggest replacing standard rules of products liability with some new system crafted specifically for autonomous vehicles and creating immunity or absolute liability or something in between.
But, I argue, the relative safety of autonomous vehicles should not be relevant in determining whether and in what ways manufacturers are held liable for their crashes. The history of products liability litigation over motor vehicle design shows that the tort system has been hesitant to indulge in such comparisons, as it generally declines both to impose liability on older, more dangerous cars simply because they lack the latest safety features and to grant immunity to newer, safer cars simply because of their superior aggregate performance. These are instances in which products liability law fails to promote efficient outcomes and instead provides redress for those who have been wronged by defective products.
Applying these ideas to the four fatalities that have so far been caused by autonomous vehicles suggests that just as conventional vehicles should not be considered defective in relying on a human driver, autonomous vehicles should not be immune when their defects cause injury.
Tuesday, September 24, 2019
At a Giant Eagle grocery store, one customer drives one of the motorized carts provided by Giant Eagle into another customer. The injured customer sues Giant Eagle for negligence and negligent entrustment. (The injured customer settled with the driver.) Plaintiff argued Giant Eagle failed to train customers to use their motorized carts, and this lack of training led to her injuries. Plaintiff won both compensatory and punitive damages at the trial level, and the intermediate appellate court affirmed with modifications. The Supreme Court of Ohio reversed, finding a lack of causation. The court found it was sheer speculation that the driving customer, who had driven these carts regularly for a year without incident, hit the injured customer because of a lack of training. Marianna Brown Bettman has extensive analysis at Legally Speaking Ohio.
Monday, September 23, 2019
Congratulations to Anita Bernstein, who has been selected the 2020 William L. Prosser Award honoree! Anita is the Anita and Stuart Subotnick Professor of Law at Brooklyn Law School. Her biography:
Prior to joining Brooklyn Law School, Professor Bernstein was the Sam Nunn Professor of Law at Emory University School of Law, the Wallace Stevens Professor of Law at New York Law School and Norman & Edna Freehling Scholar and Professor of Law at Chicago-Kent College of Law. She also served as a visiting professor at Michigan Law School, Cornell Law School, and the University of Iowa College of Law, where she was the Mason Ladd Distinguished Visiting Professor of Law. Before her academic career, she practiced with Debevoise & Plimpton and was a law clerk to Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York.