TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, June 14, 2019

Calnan on Reasonableness

Alan Calnan has posted to SSRN The Nature of Reasonableness.  The abstract provides:

Though the notion of reasonableness dominates Anglo-American law, its meaning has been clouded by traditional conceptual analysis. This Essay argues that greater clarity can be gained by taking a scientific approach to the subject, exposing the natural foundations beneath the concept’s varied interpretations.

June 14, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, June 12, 2019

Janecek on Vicarious Liability

Vaclav Janecek has posted to SSRN Vicarious Liability of Juristic Persons:  A Historical, Comparative and Philosophical Study.  The abstract provides:

This chapter advances two claims regarding vicarious liability. First, that every legal system must be capable of theoretically devising the idea of vicarious liability (as opposed to direct liability and responsibility). Second, that juristic persons and other artificial legal entities may be liable only vicariously for wrongs committed by other persons, who ultimately must be human beings. To cast new light on the concept of vicarious liability, this chapter analyses the changing relationship of the terms liability (in Czech: “ručení”) and responsibility (in Czech: “odpovědnost”) in the historical development of Czech law from the beginning of the 19th century until mid-20th century. This development was marked not only by radical changes in the posited law and by the problematic connections of the Czech legal terminology with the German one (especially with the terms Haftung and Verantwortung), but especially by the normative theory of law, internationally known especially thanks to Hans Kelsen’s writings. A peculiarity of the Czech tradition in the normative theory of law (analysed in this chapter primarily through the pioneering work of František Weyr, whose publications are mostly unknown in English-speaking countries) is that it has arrived at the concept of vicarious liability by analysing the abstract nature of legal duties, i.e. regardless of any positive legal system. This happened already in the 1930s, although the Czech normative theory of law did not take into account any developments in the common law systems with which the concept of “vicarious liability” is typically associated. This chapter presents and develops the “normativist” theory of vicarious liability to arrive at the two main claims as set out above.

June 12, 2019 in Scholarship | Permalink | Comments (0)

Monday, June 10, 2019

Maliha on the Distortive Effect of the National Practitioner Data Bank on Medical Malpractice

George Maliha has posted to SSRN The Distortive Effect of the National Practitioner Data Bank on Medical Malpractice Litigation and Settlement.  The abstract provides:

Congress created the National Practitioner Data Bank ("NPDB") in 1986 to address a concern that medical liability cases were increasing throughout the nation. In order to prevent physicians from moving from state to state in order to escape a poor outcome, the NPDB was supposed to provide a central clearinghouse of information for every physician in the country-regardless of where they practiced. However, the NPDB distorts medical malpractice litigation and settlement-harming defendant-physicians, plaintiff-patients, and insurers. The NPDB's brooding shadow over medical malpractice has led many litigants and commentators to term it a "blacklist." Part II explores whether this term is appropriate by describing the NPDB in the context of insurer-physician relations. This discussion will connect the well-described model of insurer-insured relations to the prescient concerns raised about the NPDB's potential distortive effect on litigation and settlement as the data bank was being enacted in the late 1980s. Part III will explore mechanisms to alter reports-and place a physician's "side" into the record kept by the NPDB. Attempts to alter reports have triggered litigation against reporting entities and the NPDB itself, and although they have largely failed, these suits illustrate the unique problems that the NPDB causes physicians. In Part IV, these unsuccessful suits will be contrasted against a body of law surrounding the accuracy of another putative "blacklist"-credit scores. Part V will begin to sketch out some basic policy recommendations.

June 10, 2019 in Scholarship | Permalink | Comments (0)

Friday, June 7, 2019

Cortez on Technology and Patient Safety

Nathan Cortez has posted to SSRN A Black Box for Patient Safety?.  The abstract provides:

Technology now makes it possible to record surgical procedures with striking granularity. And new methods of artificial intelligence (A.I.) and machine learning allow data from surgeries to be used to identify and predict errors. These technologies are now being deployed, on a research basis, in hospitals around the world, including in U.S. hospitals. This Article evaluates whether such recordings – and whether subsequent software analyses of such recordings – are discoverable and admissible in U.S. courts in medical malpractice actions. I then argue for reformulating traditional "information policy" to accommodate the use of these new technologies without losing sight of patient safety concerns and patient legal rights.

June 7, 2019 in Scholarship, Web/Tech | Permalink | Comments (0)

Tuesday, June 4, 2019

Patti on Autonomous Vehicles in Europe

Francesco Paolo Patti has posted to SSRN The European Road to Autonomous Vehicles.  The abstract provides:

The present contribution intends to outline a “European regulatory strategy” in order to address technological and legal challenges posed by autonomous vehicles. Starting with a recent communication of the EU Commission, the paper provides a critical analysis of the EU policies on the legal issues of liability related to autonomous vehicles. The ongoing discussions within national jurisdictions demonstrate that a comprehensive plan to tackle the aforementioned problems is missing. The efforts made by national legislators and scholars reveal a patchwork of solutions, whereby everyone tries to find their own way to balance innovation with the need to protect the interested persons. It is however clear that the possible evolutions in the automotive sector will mainly affect three branches of private law: traffic accident liability, product liability and insurance law. It is thus necessary to understand whether private law needs to adapt its paradigms to the technological developments under examination. In this respect, the contribution tries to examine the main problematic aspects of the actual legal framework at the national and European level. It goes then further in presenting, through a two-steps approach, how traffic liability might look like in the future, both in the short and in the longer term. The main findings of the article are that in the near future no dramatic changes are required, but just some minor amendments to adapt the product liability regime to the technological changes; in the more distant future, when users will demand autonomous vehicles through their devices, there will be the need to fashion a new system of traffic liability with compulsory insurance on manufactures, which will become a prerequisite for the vehicle being in motion. Finally, the paper advances some conclusions about the need to foster comparative research on the examined issues. 

June 4, 2019 in Scholarship | Permalink | Comments (0)

Friday, May 31, 2019

Bagchi on Production Liability

Aditi Bagchi has posted to SSRN Production Liability.  The abstract provides:

It is well known that many consumer goods are produced under dangerous working conditions. Employers that directly supervise the production of these goods evade enforcement. Activists and scholars have argued that we must hold the manufacturers and retailers that purchase goods made in sweatshops accountable. However, there has been little movement toward such accountability.

Responsibility for the conditions under which goods are made — what I call “production liability” — entails assigning responsibility for workers to firms that do not directly employ them. Production liability, therefore, conflicts with deep intuitions about the boundaries of individual responsibility.

This Article offers a moral and economic defense of production liability that is responsive to that challenge. The Article identifies the particular moral responsibility that manufacturers bear as a public form of complicity. It further considers the economic logic of assigning legal liability to such firms and the optimal form that liability should take. This Article makes the case that production liability can update our legal regime for employment in the way that products liability did for consumer law.

May 31, 2019 in Scholarship | Permalink | Comments (0)

Thursday, May 30, 2019

Faure on an Economic Analysis of Product Liability

Michael Faure has posted to SSRN An Economic Analysis of Product Liability.  The abstract provides:

This chapter in a book on European product liability provides a summary of the economic approach to product liability. The economic theory of product liability based on the Coase Theorem is explained. Next, product liability when damage is suffered by third parties is analyzed. Specific attention is paid to the EU Product Liability Directive and to more recent literature.

May 30, 2019 in Products Liability, Scholarship | Permalink | Comments (0)

Wednesday, May 29, 2019

JOTWELL Torts: Engstrom on Kachalia et al. on Med Mal Communication-and-Resolution Programs

Thursday, May 23, 2019

Feinman on Contract and Claim in Insurance Law

Jay Feinman has posted to SSRN Contract and Claim in Insurance Law.  The abstract provides:

This article offers a new perspective on insurance law by examining and combining two basic features of insurance and insurance law: the nature of the insurance contract and the fact that most insurance law issues concern a disputed claim. Insurance law scholars are fond of reconceptualizing their subject. Insurance policies and insurance law have been likened to a means of public utility regulation, a product warranty, a social institution, or, perhaps mostly simply, a thing. This article represents another conceptualization of the subject, and one that may be less foreign to the subject and closer to the reality of the formation and performance of insurance relationships.

Every insurance policy is a contract between the policyholder and the insurer. Fundamentally, however, almost every insurance law problem, dispute, or doctrine is really about paying or not paying claims. These two features — contract and claim — are at the heart of most insurance law disputes. The significance of insurance as contract is generally recognized, but the centrality of claims, less so. The article examines each of them separately and then combines them. Doing so provides a perspective on a large number of insurance law issues, and that perspective should change the courts’ approach to a number of issues and doctrines. The focus is on personal lines, particularly first-party insurance, but the analysis also has implications in other settings.

The article first presents the contract and claim analysis. It then applies the analysis to several common issues in insurance law. The illustrations come from three different points in the life of an insurance policy. The first concerns a formation issue: when an insurer may use misstatements by a policyholder in the application process to avoid coverage. The second, and most general, addresses interpretation issues that concern the insurer’s performance of the insurance contract. The third concerns issues of policyholder and insurer performance after a claim is filed — the false swearing rule and the law of insurance bad faith. All three reinforce the insight that every doctrinal issue involves a conception of the insurance contract and arises because of a disputed claim. The discussion demonstrates that courts sometimes use similar analysis, describes those tendencies, suggests why they are incomplete, and uses the contract and claim analysis to make them explicit and more comprehensive. Other courts take quite different approaches; contrasting those approaches with the contract and claim analysis demonstrates what they get wrong. The result is both a demonstration of the usefulness of the article’s analysis and a beginning catalog of how it can reshape insurance law doctrine.

May 23, 2019 in Scholarship | Permalink | Comments (0)

Friday, May 17, 2019

Viscusi on Med Mal Reform

Kip Viscusi has posted to SSRN Medical Malpractice Reform:  What Works and What Doesn't.  The abstract provides:

Concerns with medical malpractice liability costs have been a principal factor leading states to adopt a series of tort liability reforms. Medical malpractice premiums have been declining, creating less of a cost-based impetus for additional reforms. The most consistent empirical evidence indicating statistically significant effects of medical malpractice reforms has been for caps on non-economic damages. Damages caps reduce insurance losses and foster insurer profitability, consistent with the objective of caps. The impacts of caps are greatest for insurance companies that otherwise would have experienced the greatest losses in the state. However, caps may reduce payouts to plaintiffs, potentially reducing the funds available to cover economic losses and attorney fees. A more recent medical malpractice reform, apology laws, may have a counterproductive effect by encouraging apologies that have the unintended consequence of increasing litigation and damages payments. There is also evidence that medical malpractice reforms affect the delivery of medical care and the supply of physicians, but these effects are not as prominent as the impacts on payouts. Medical malpractice liability remains an inefficient way to transfer funds to injured patients. The share of litigation and defense expenses relative to costs remains high. The early offer reform proposal is one approach that is directed at reducing these costs.

May 17, 2019 in Scholarship | Permalink | Comments (0)

Monday, May 13, 2019

Rabin & Picard on the Regulation of High-Risk Medical Device Cases

Bob Rabin and Alyssa Picard have posted to SSRN Reassessing the Regulation of High-Risk Medical Device Cases.  The abstract provides:

In 1976, Congress enacted the Medical Device Amendments (MDA), plugging a gap between regulation of prescription drugs, which were subjected to a premarket protocol aimed at assuring safety and efficacy, and medical devices, which were solely monitored for adulteration and misbranding after distribution in the marketplace.

Class III devices “usually sustain or support life, are implanted, or present potential unreasonable risk of illness or injury;” they represent the remaining 10% of medical devices and include devices like pacemakers, breast implants, and intrauterine devices. Only Class III devices are required to go through the premarket approval process (PMA)—a process that requires clinical data. In a leading case on the preemption of tort claims, Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), the U.S. Supreme Court had occasion to review the rigor of PMA premarketing oversight and concluded that it was indeed notable for its scrupulousness. On average, the Court noted, the FDA spent 1,200 hours reviewing an application, which included reports of every study and investigation of the device, a description of component parts, samples of products, a specimen of the proposed labeling, and descriptions of the production, manufacturing, packaging, and installation methods. As part of the PMA process, the FDA had discretion to bring in a panel of outside experts and could request more information or data from the manufacturer. 

Viewing the process through this lens, the Court preempted the plaintiff’s tort claim, which was based on failure to adequately warn of the risk that defendant manufacturer’s balloon catheter would rupture during angioplasty surgery—a risk that came to fruition. According to the Court, Section 360k of the MDA—an express preemption clause barring “any requirement…which is different from, or in addition to, any requirement…[under the Act] which relates to the safety or effectiveness of the device….”—was applicable to the claim.

A sharp line was drawn between the PMA process in Riegel and FDA’s 510(k) substantial equivalence review, which only subjects a device to a limited form of review to determine whether it is “substantially equivalent” to a preexisting legally marketed device. Twelve years earlier, in Medtronic, Inc., v. Lohr, 552 U.S. 312 (2008), the Supreme Court found substantial equivalence review insufficiently rigorous to preempt tort claims. Taken together, the two decisions seemed to mark out a persuasive boundary between tort claims that would, if allowed, impermissibly re-tread the same ground covered by the agency (via the PMA process), and claims premised on a risk/utility tort process complementary to the once-over-lightly of “substantial equivalence” review.

In this Article, Part I probes more deeply into the case for recognizing a safe harbor from tort claims under the existing regime of FDA premarket assessment of high-risk devices. Part II addresses post-market FDA strategies for assessment of product safety. Part III shifts the focal point to tort, revisiting the shadow cast by preemption over tort as a complementary regulatory strategy. Finally, Part IV offers concluding thoughts on the necessity of a fresh look at the regulatory process in action—and reconsideration of how it might be improved in this vital area of health and safety. 

May 13, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, May 8, 2019

Davis on Pharmaceutical Products Liability

Mary Davis has posted to SSRN Time For a Fresh Look at Strict Liability for Pharmaceuticals.  The abstract provides:

Over the ensuing 50 years from the promulgation of § 402A, products liability in general has seen a retrenchment from strict liability. The Restatement (Third) of Torts: Products Liability openly adopted negligence principles for design and warning claims, and created an entirely new provision to protect pharmaceutical manufacturers even more robust than 402A's comment k. Regarding pharmaceutical liability, the trend away from any liability at all has been remarkable. In the face of this legal history, and in spite of it, this Article proposes taking a fresh look at strict liability for pharmaceutical injuries. What has changed since the adoption of the Products Liability Restatement, which endorsed a virtual immunity from liability for pharmaceuticals? Such a suggestion is likely to be met with cries of “absolute liability” and concern for a chilling effect on innovation for much needed therapeutic treatments. There are three primary reasons this Article proposes a reassessment for strict tort liability in this context. First, the expansive federal preemption doctrine that the United States Supreme Court has fashioned in the last decade defeats almost all state tort liability for pharmaceuticals, particularly for generic pharmaceuticals which comprise over 85 percent of the prescriptions in this country. Second, both the pre-marketing approval process and the post-marketing risk assessment regulatory structures fundamentally cannot adequately identify, communicate, and reduce adverse drug events and, consequently, those events are increasing and likely to continue to do so. Third, the structure of pharmaceutical marketing, increasingly unregulated, has influenced prescribing practices in ways that compound the likelihood and severity of adverse drug events.

These trends in pharmaceutical marketing practices, coupled with the systemic limitations on information-gathering and response in the regulatory system, has created a demand for pharmaceuticals that increases the likelihood of adverse drug events with no meaningful mechanism to identify and reduce the risks presented. While the legal landscape has become barren to the use of tort liability to compensate for the inevitable risk of adverse drug effects, the medical care landscape has become more fertile for those side effects to occur. The convergence of these trends supports a reevaluation of the use of strict, non-fault liability on producers of pharmaceuticals for the harms their products cause.

May 8, 2019 in Products Liability, Scholarship | Permalink | Comments (0)

Saturday, May 4, 2019

Billauer on a Feminist-Tort Approach to Wrongful Birth

Barbara Billauer has posted to SSRN Re-Vitalizing Wrongful Birth Claims:  A Feminist-Tort Approach.  The abstract provides:

Wrongful birth claims are brought to compensate parents for damages incident to the birth of an unwanted child occasioned by physician negligence. These cases often apply in the context of failed sterilization or failing to advise that the fetus is suffering a genetic defect, thereby foreclosing the option of abortion. Generally, damages are limited to harm occurring peri-pregnancy. Claims for child maintenance are routinely denied on the basis of an imaginary offset conjured by judges: the joys of child-raising compensate for the costs of child-rearing.

This article discusses why such reasoning deprives the mother of her right of autonomy and raises other arguments for allowing such damages from a feminist tort perspective. I further raise the inclusion of a heretofore unrecognized harm: the effect of the unwanted child's birth on its siblings. The drain of an additional child on family resources, both emotional and financial, affects not only the parents, but negatively impacts the entire family unit. This additional harm vitiates any possible offset - even if one, arguendo, can be said to exist.

May 4, 2019 in Scholarship | Permalink | Comments (0)

Friday, May 3, 2019

Perry on Liability for Cyberbullying

Ronen Perry has posted to SSRN Civil Liability for Cyberbullying.  The abstract provides:

Cyberbullying has become a notorious epidemic, culminating in widely publicized suicides. Whether a new and distinct problem or an old one in a new guise, the technological setting has undoubtedly generated new challenges and, at the same time, new opportunities for legal response. Regrettably, while delegation of power to educational institutions and criminalization of cyber-misconduct are relatively common, at least in public discourse, the potential impact of civil liability has been downplayed. This Article puts the underexplored regulatory tool under the spotlight. It provides systematic legal and economic analyses of civil liability for cyberbullying, based on a trichotomy of potential defendants—primary wrongdoers, real-life supervisors (parents, schools), and virtual supervisors (mostly online platform operators).

Ultimately, the Article lays the foundations for an efficiency-oriented model which integrates technological features to reduce supervisors’ information costs. In order to incentivize parents to reasonably use advanced surveillance applications, the proposed model imposes liability when failure to employ such tools results in juvenile cyber-wrongdoing, in addition to standard liability for not taking reasonable precautions upon learning about the risk. The model also imposes liability on schools for cyberbullying through school devices if they failed to: (1) enforce reliable identification of users, (2) employ advanced surveillance tools, or (3) take reasonable measures to prevent harm upon notification of possible misconduct. Finally, the model holds a virtual supervisor liable if the victim has insufficient information to identify the wrongdoer, the victim gave notice of the complaint, and the virtual supervisor did not properly respond.

May 3, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, April 30, 2019

JOTWELL Torts: Geistfeld on Long on Suicide

At JOTWELL, Mark Geistfeld reviews Alex Long's Abolishing the Suicide Rule.

April 30, 2019 in Scholarship, Weblogs | Permalink | Comments (0)

Friday, April 19, 2019

Shapiro on Civil Wrongs and Civil Procedure

Matthew Shapiro has posted to SSRN Civil Wrongs and Civil Procedure.  The abstract provides:

Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by “transsubstantive” rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an “interpretive” methodology that commits it to deeming those procedural features a “basic” part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the “pragmatic” desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.

April 19, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, April 10, 2019

Witt, Martins & Price on Waivers

John Witt, Ryan Martins & Shannon Price have posted to SSRN Contract's Revenge:  The Waiver Society and the Death of Tort.  The abstract provides:

A generation ago observers confidently predicted the death of contract and the triumph of tort. But contract has risen from the dead. Contracts waiving tort rights have become ubiquitous in the American marketplace. We survey the history and doctrine of exculpatory clauses in a wide variety of consumer contracts. We find that mid-twentieth-century skepticism about waivers has given way to a new age of increased waiver enforcement. The story of waiver enforcement, we conclude, is of a piece with the resurgence of free contract and market thinking in the 1980s and 1990s, a process we call “contract’s revenge.”

April 10, 2019 in Scholarship | Permalink | Comments (0)

Monday, April 1, 2019

JOTWELL Torts: Zipursky on Abraham & White on Cardozo's Wagner Opinion

At JOTWELL, Ben Zipursky reviews Ken Abraham and Ted White's Recovering Wagner v. International Railway Company.

April 1, 2019 in Scholarship, Weblogs | Permalink | Comments (0)

Thursday, March 28, 2019

Abraham & White on Nameless Torts, New Torts, and Intangible Harm

Ken Abraham & Ted White have posted to SSRN Torts Without Names, New Torts, and the Future of Liability for Intangible Harm.  The abstract provides:

Torts have names for a reason. A tort without a name would very nearly be a contradiction in terms, because it would not describe itself. But torts do not always get names immediately upon birth. Typically, it takes some time to recognize what they are, because they are in search of an identity or have a vaguely defined content. The law of torts of the future may well experience this process, as it works through the rights and liabilities that govern harms characteristic of the information age: invasions and misuses of digitized personal data, and sexualized attitudes and misconduct, for example. The dominant form that new liabilities took in the twentieth century was through the establishment of new, particularized torts. An alternative but much less known form of liability, however, competed with the named-tort approach during this same period, and to some extent still competes with it. This is the application of what we call a “residual category” of liability. In our judgment, however, a residual category approach to the intangible harms of the twenty-first century should and would fail in the same way, and for the same reasons, that this approach largely failed in the twentieth century. The new torts of the twenty-first century will have to be particular, named torts. This Article explains why this will be the case, and then undertakes to demonstrate how these explanations apply to the most salient forms of intangible harm on the current scene–harms that inevitably will be candidates for tort liability in the years to come. We identify the aspects of each form of loss that we think may well become actionable through the adoption of new torts or the expansion of existing torts, as well as the aspects of loss that will continue not to be actionable.

March 28, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, March 20, 2019

Oman on John Calvin's Quarrel with Civil Recourse Theory

Nathan Oman has posted to SSRN John Calvin's Quarrel with Civil Recourse Theory.  The abstract provides:

This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and “the right to be punitive,” which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the “right to reparation” on which some civil recourse theorists have sought to normatively ground private law.

March 20, 2019 in Scholarship | Permalink | Comments (0)