Tuesday, March 19, 2019
Last Thursday, the Connecticut Supreme Court, in a 4-3 ruling, allowed plaintiff families from the 2012 Sandy Hook Elementary shootings to proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 rifle used in the attack. The cause of action was based on the Connecticut Unfair Trade Practices Act (CUPTA) for "personal injuries that result directly from wrongful advertising practices.” Significantly, the court held the suit was not barred by the Protection of Lawful Commerce in Arms Act (PLCAA) of 2005, which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons. The court held the plaintiffs' CUPTA claim fell within a:
“predicate exception [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012) … [I]f the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assault against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted."
The court's opinion:
puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.
“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon — quoting from the Supreme Court’s majority opinion.
Monday, March 18, 2019
A newly reconfigured Florida Supreme Court and 6 tort reform bills mean the likelihood of tort reform in Florida has increased. Newly elected Governor DeSantis made 3 appointments to the high court, turning a 4-3 conservative minority into a 6-1 majority. There are 4 House bills and two in the Senate proposing tort reform. Among other provisions, the bills would cap pain-and-suffering damages at $1M, without the jury being informed, and reform "bad faith" suits. Florida Watchdog has details.
Friday, March 15, 2019
Elizabeth Weeks has posted to SSRN Healthism in Tort Law. The abstract provides:
This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired driver and physician cases, failure to mitigate, intentional infliction of emotional distress, and other tort law rules. It concludes by applying the book's decisional rubric for distinguishing between permissible and impermissible health status differentiation to specific examples from tort law.
She presented this piece at AALS in January, and it is forthcoming in the Journal of Tort Law.
Thursday, March 14, 2019
Marijuana laws are undergoing a rapid transformation. Although still criminal at the federal level, 33 states and D.C. have authorized medical marijuana and 10 states and D.C. have authorized it for recreational use. The business incentives are certainly there. Expected revenue from marijuana businesses in 2019 is projected at $13.7B, and will grow to $22.1B in 2022. One problem involves insurance. Commercial general liability, property liability, and products liability policies often provide only $1M per occurrence and $2M in the aggregate. According to a report released yesterday by A.M. Best, that may be insufficient for marijuana businesses. Moreover, because this is an emerging market, insurers are inclined to stick with the limits. Business Insurance has details.
Wednesday, March 13, 2019
Nathaniel Donahue & John Witt have posted to SSRN Tort as Private Administration. The abstract provides:
What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function is to shape the process by which private parties settle. In particular, core doctrines in tort help to structure and sustain the systems of private administration by which injury claims are actually resolved. Though an observer could hardly guess it from judge-centric theories of tort or by reading the typical reported appellate cases, repeat-play stakeholders such as the plaintiffs’ bar, insurers, and others are developing and managing claims resolution facilities that have turned the resolution of one-off tort claims in the United States into something akin to aggregate litigation or a public compensation program. Hidden deep in the shadows of the law, private administration is becoming a standard feature of torts practice with substantial implications for the theory of tort law and litigation.
Tuesday, March 12, 2019
The parents of a 7-year-old Colorado Springs elementary student are suing for injuries she sustained in an after-school science experiment. The plaintiff's attorney expects the school district and parent-teacher organization to be relieved of financial obligations early in the procedure; he believes an organization that provides hands-on, after-school science, technology, engineering and math programs on school grounds will bear responsibility:
The complaint alleges that on Feb. 28, 2017, the couple’s then 7-year-old daughter suffered first- and second-degree burns from “scalding hot liquid from a glass container that was dangerously placed on a counter on an unsupervised hot plate and knocked off.”
The girl was burned on her face, left ear, left arm, left shoulder, both legs and right foot, according to court documents. The injuries required surgical removal of the damaged tissue and skin grafts, leaving her with scars, the lawsuit states.
The Gazette has the story.
Monday, March 11, 2019
I am sad to announce the passing of Bill Powers, former president of the University of Texas, dean of the Texas School of Law, and Reporter for the Restatement (Third) of Torts. I did not know Bill well, but I was impressed with him in every encounter we had. He was kind to me. Brian Leiter has a post here, and UT has a memorial notice here.
On Thursday, a jury in Los Angeles reached a $2M verdict against a school district for failing to properly supervise a teacher who had a sexual relationship with a student in 2013, when she was 15 years old. The overall award was $5M, but the jury split responsibility 60% for the teacher, who was not a party to the suit, and 40% for the school district. The teacher had been arrested in 2004 for an alleged act against a minor at another high school. NBC4 has the story.
Thursday, March 7, 2019
Barbara Pfeffer Billauer has posted two pieces on wrongful life to SSRN. The first is The Sperminator as a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts). The abstract provides:
Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress for sperm-bank imposed harms begs to be filled. This article demonstrates for the first time that some sperm-bank generated harms transcend violating the personal goals of the parent and the rights of the child. In addition, sperm bank errors infringe on societal rights by, for example, saddling it with health costs for children born with genetic diseases. Moreover, introducing inherited diseases into the gene pool in large numbers sets the stage for a public health crisis. To address these harms, I propose repurposing an old of cause action, the private claim of a public nuisance. This harm-driven approach expands the class of would-be plaintiffs, broadens the spectrum of allowable claims, and bypasses restrictions imposed by traditional negligence law. Insofar as punitive damages are also allowed, the claim also has the potential to act as a deterrent of a host of sub-par sperm bank practices. I also discuss the implications of holding the sperm bank to fiduciary standards.
The second is Wrongful Life in the Age of CRISPR-CAS: Developing a Legal Fiction for Wrongful Gamete Manipulation Cases. The abstract provides:
Virtually all wrongful life claims (those brought by children harmed prior to gestation), are denied. The basis for these holdings pivots around refusal to allow recompense for actions which result in the child’s being born, an offshoot of cases where parents are denied the right of abortion. We therefore are faced with a legal lacuna, where children suffering serious harms as a result of wrongful genetic manipulation (WGM) caused by the latest reproductive technologies are legal orphans. This article details avenues of potential harm generated by the latest technologies before proceeding to create a legal fiction, “the conceptual being” which would enable these children to bypass current restrictions and claim an expanded class of damages, including pain and suffering, emotional injury and unjust enrichment.
Wednesday, March 6, 2019
Andy Popper has posted to SSRN Rethinking Feres. The abstract provides:
In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to those harmed by individuals acting on behalf of the federal government. Liability was limited from the outset by the vague and vexing discretionary function exception as well as limits on punitive damages, jury trials, attorney’s fees, injuries sustained abroad, and injuries sustained in combat. Unresolved by the FTCA was the fate of service members injured by actions incident to military service but outside of armed conflict.
Four years after the passage of the FTCA, the Supreme Court decided Feres v. United States, and in a few pages placed dramatic limits on the rights of millions of Americans. The Court rationalized these limitations on the need to maintain order and discipline, chain-of-command, unfair or unjust enrichment, and efficiency. The force of this decision was apparent immediately: most of those injured incident to military service would be denied access to the very system of justice they pledged to defend. Also lost was the potent deterrent effect of civil tort sanctions and the corresponding accountability those sanctions generate.
On enlistment, service members agree to be bound by a separate set of rules, a system bounded by discipline and unquestioning compliance with lawful orders. That oath does not include the concession to be without recourse should they be injured by impermissible misconduct. More than a half century ago, the late Chief Justice Warren stated that “citizens in uniform” should not be stripped of their basic rights simply because they are members of the armed forces, and yet, to date, Feres continues to be the law of the land.
In recent years, those who serve have been thanked by presidents and lauded at the start of nationally broadcast sporting events. Service members are routinely called heroes – and they are. Yet these gestures are incomplete when accompanied by a deprivation of one of the basic rights due to all citizens. Those most entitled to it, those willing to fight and die for it, cannot experienced the great promise of our legal system: fair hearings, a level playing field – in short, the blessings of simple justice.
The challenge of this article is that the same immunity that shields wrongdoers has also played a role in the evolution of our unquestionably extraordinary and exceptional armed forces. These are potent competing forces. Against this backdrop, it is time to rethink Feres.
This article discusses Feres v. United States, the FTCA, the expansion of the “incident to service” prohibition, and makes the following recommendation: Feres should be overturned and the FTCA amended to allow access to justice in Article III courts for those injured by actions that are neither incident to nor essential to military service. These actions include sexual assault, rape, vicious and unjustified physical violence, clear or gross medical malpractice, repetitive incidents of driving under the influence, nonconsenting exposure to toxins, and invidious discrimination.
When those who engage in misconduct are held accountable, when government is obligated to remedy those wrongs, respect for order, discipline, and all standards will increase. When uniformly condemned actions are subjected to public scrutiny in Article III courts, the probability of future similar misconduct will decline.
Tuesday, March 5, 2019
Jill Wieber Lens has posted to SSRN Children, Wrongful Death, & Punitive Damages. The abstract provides:
Starting in the mid-nineteenth century, state legislatures created wrongful death claims, including claims for bereaved parents against the tortfeasor who killed their child. Legislatures limited recoverable damages to pecuniary damages, meaning parents could recover the lost economic contributions they expected to receive from their child during his minority, minus the costs of raising the child. That pecuniary damage measure still controls today, with most states now also allowing recovery of noneconomic loss-of-relationship damages, although many states also cap the recovery of noneconomic damages. In sum, parents’ recovery of damages for their child’s death—a personal and cultural tragedy—is limited to pecuniary damages, which today’s parents lack, and a possibly capped noneconomic damage award.
The first Part of this Article explores the historical context—the antiquated assumptions about children—existing when state legislatures adopted the pecuniary measure. Those assumptions rely on two realities of the nineteenth-century child—that he was likely to die in his youth, and that he was valued economically. The infant and child mortality rates were high in the nineteenth century, which historians agree caused parents to expect at least one of their children to die and possibly also caused parents to be indifferent to that child’s death. Relatedly, parents valued their children economically, most evident in still-increasing prevalence of child labor in the nineteenth century. Under these realities, a pecuniary measure of damages was appropriate. But these realities of the nineteenth-century child long ago faded. Child death is now a personal and cultural tragedy, a reality in which pecuniary damages make no sense.
The second Part of this Article suggests the adoption of a remedy consistent with the current tragedy of child death. That remedy is the exclusive use of punitive damages in wrongful death of children cases, a remedy for parents that is actually a substantive response to the death of a child and that could provide parents something significant and meaningful. The use of punitive damages is consistent with private redress punitive damage theory, empowering victims to obtain damages for the moral injury suffered, allowing parents to recover damages for the moral injury they suffer when their child is tortiously killed. The appreciation that parents suffer a moral injury better encapsulates parents’ actual experience—an experience involving much more than compensable grief. Also, punitive damages, unlike compensatory damages, actually express the wrongfulness of the wrongful death of a child.
Thursday, February 28, 2019
Earlier this month, I reported that tort reform bills had been filed again in Missouri to alter liberal joinder rules in that state. In the meantime, the Missouri Supreme Court ruled that allowing a non-resident to participate in joined cases was a violation of state law prohibiting the use of joinder to allow courts to hear cases they otherwise would not be able to. The ruling may eliminate or reduce the pressure to pass legislation. One company that may be particularly affected is J&J, a New Jersey-based company defending cases that talc included in its baby powder causes cancer. In a December report, Reuters stated that J&J knew that talc in its baby powder tested positive for asbestos from the 1970s to the early 2000s. J&J is facing about 13,000 cases over the issue, most of which have been consolidated in federal court in New Jersey. The Missouri Supreme Court's ruling is potentially good news for J&J:
The St. Louis court has been a venue for more talc trials and has seen larger verdicts than any other jurisdiction. Outside of St. Louis, the only other significant talc verdicts against J&J to date have come in lawsuits filed by individual plaintiffs in New Jersey and California, where the company is currently facing jury verdicts totalling $142 million.
Tina Bellon at the Insurance Journal has the story.
Wednesday, February 27, 2019
In 2015, Robert Dear--armed with multiple semiautomatic rifles, a shotgun, and explosives--shot several people in the parking lot of an abortion clinic and then shot through the clinic's windows, wounding several more. A gun battle with police ensued in which one officer was killed and five were injured. In all, 3 people were killed and 9 wounded. Planned Parenthood of the Rocky Mountains (PPRM) was sued for negligence; the trial court granted summary judgment to PPRM. Last week, the Colorado Court of Appeals reversed the trial court. The appeals court found the plaintiffs raised genuine issues of material fact that PPRM knew of reasonable security measures that could have prevented the damages, and that PPRM was aware of threats against its premises. The case will go to a jury. The case is Wagner v. Planned Parenthood , Colo. Ct. App., No. 17CA2304. Thanks to Susan Raeker-Jordan for the tip.
Tuesday, February 26, 2019
The Tenth Biennial Conference on the Law of Obligations will take place at Harvard Law School from July 14-17, 2020. It is co-hosted by Harvard Law School and Melbourne Law School, and will be co-convened by John Goldberg, Andrew Robertson, and Henry Smith. The conference will focus on internalist and externalist views of private law. Anyone wishing to contribute a paper should submit a title and abstract of no more than 500 words by August 15, 2019 to firstname.lastname@example.org. Those proposing papers will be notified by October 1, 2019 if the paper has been accepted. A flyer is here: Download Call for papers
Monday, February 25, 2019
Frank Vandall has posted to SSRN Tincher Unmasked. The abstract provides:
Over 76 years ago, Justice Traynor of the California Supreme Court called for the adoption of strict liability for products liability cases and for the rejection of negligence in such cases. The Supreme Court of Pennsylvania recently agreed in Tincher v. Omega Flex, Inc. Strict liability leads to corporate liability and this results in increased payments to victims and slightly lower profits. Corporations responded to strict liability with a firm embrace of the negligence cause of action, which puts both parties on an equal footing. This results in corporations winning more cases. The PLAC (an association of corporations that file amici briefs defending corporations) argued for negligence in Tincher.
In this paper I argue in favor of strict liability and support the Pennsylvania Supreme Court’s decision in Tincher.
Thursday, February 21, 2019
Wednesday, February 20, 2019
Two weeks ago, I reported that the Pennsylvania Supreme Court was considering an alteration of venue rules for medical malpractice cases. In the early 2000's, the court restricted venue to the place of the wrong to prevent plaintiffs from venue-shopping. The court is considering a removal of this restriction, which is not in place for other types of cases. The court has now agreed to delay action until the issue can be studied by the Legislative Budget and Finance Committee; the report is due by January 1, 2020. Pennlive has details.
Tuesday, February 19, 2019
Ken Abraham has posted to SSRN Plain Meaning, Extrinsic Evidence, and Ambiguity: Myth and Reality in Insurance Policy Interpretation. The abstract provides:
Insurance coverage disputes are mostly about the correct interpretation of an insurance policy provision. But three myths confuse and confound thinking about the interpretation of insurance policies. The first myth is that an unambiguous insurance policy provision -- a provision with a “plain” meaning -- carries that meaning on its face. The second myth is that, if a policy provision has a plain meaning, then under the plain-meaning “rule,” sources of meaning outside the four corners of the insurance policy -- sources “extrinsic” to the policy -- are not admissible to aid in interpreting the provision. The third myth is that ambiguous policy provisions are necessarily construed against the drafter, which in insurance is almost always the insurer. In reality, all three myths seriously oversimplify how interpretation takes place. The problem, however, is not that, in acting in ways that are inconsistent with the simplifying myths, the courts are undermining desirable rules by quietly following other, undesirable rules. On the contrary, we do not need to change the rules or practices that govern insurance policy interpretation. Rather, we need more clarity and a deeper understanding of the sophisticated, complex rules and practices that are actually in force and are actually applied in practice. This Article aims to provide both.
Sunday, February 17, 2019
Duquesne University School of Law is hosting a two-day conference on artificial intelligence on April 26 & 27, 2019. There are a number of great presentations (including one by Dionne Anthon, Anna Hemingway, and Amanda Sholtis of Widener Commonwealth). Details are available here: Download Duquesne AI Conference Announcement
Friday, February 15, 2019
After a multi-year saga in which ballot initiatives to amend the state constitution were struck down, new bills have been filed in Arkansas. These bills, like prior ones, would amend the state constitution to allow caps on non-economic and punitive damages. Unlike prior bills, control over procedure in state courts is not shifted to the legislature. KAIT8 has details.