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Personal Injury Roundup No. 58 (11/20/09)
Posted on November 20, 2009I hope your last week before Thanksgiving was a good one! Reform, Legislation, Policy Tim Lytton's guest post attracts attention. (Frank/Point of Law) (Lahav/Mass Tort Profs) Law Profs Max Mehlman & Dale Nance (Case Western) argue med mal tort reform...
Introducing Guest Blogger Ben Zipursky
Posted on November 19, 2009Monday's Guest Blogger is Ben Zipursky. Zipursky is currently the James H. Quinn '49 Chair in Legal Ethics and Professor of Law at Fordham Law School, where he teaches Torts, Law & Philosophy, Advanced Torts ? Defamation & Privacy, Tort...
Illinois Rejects Tarasoff
Posted on November 18, 2009In Tedrick v. Community Resources Center, Inc., Nos. 104861, 104876 (Ill. Sept. 24, 2009), the Supreme Court of Illinois explicitly rejected Tarasoff. Earlier opinions cast doubt on the acceptance of the famous California case in Illinois, but Tedrick made it...
Another Wacky Warning...
Posted on November 18, 2009Torts professors frequently become connoisseurs, or at least aficionados, of warning labels. Knowing this, a colleague brought me the warning label in his copy of Walther P-38 Pistol by Major George C. Nonte. The book was published in 1975 by...
Iowa Adopts R3 Positions on Duty and Causation
Posted on November 18, 2009Last week, the Iowa Supreme Court decided Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009), and adopted the Restatement (Third) of Torts approach to both duty and causation. The plaintiffs lost control of their car on a rural road because...
Putting Words In Their Mouths
Posted on November 17, 2009The New York Times reports that lobbyists working for Genentech, one of the world's largest bio-tech companies, authored statements on the health care debate for over 40 House members: The lobbyists, employed by Genentech and by two Washington law firms,...
Proximate Cause?
Posted on November 17, 2009As we struggle to come up with final exam ideas, TMZ brings us an interesting proximate cause issue. DJ AM (aka Adam Goldstein) died back in August from a drug overdose (according to the medical examiner). His estate, however, has...
Guest Blogger Tim Lytton: "Is the Tort System a Litigation Lottery?"
Posted on November 16, 2009The tort system is frequently described by critics as a ?litigation lottery.? For example, in their best-selling book Nudge, Richard Thaler and Cass Sunstein compare medical malpractice litigation to a lottery based on the assertion that many plaintiffs who suffer...
Conk & Zhu on Chinese Tort Law
Posted on November 14, 2009George Conk (Fordham) and Wang Zhu (Sichuan University School of Law) have posted to SSRN Tort Liability Law of the People's Republic of China. Here is the abstract: Discussion of the need to revise the basic Civil Code of China...
Guest Blogger John C.P. Goldberg: What's Wrong with Torts?, Part II
Posted on November 13, 2009What?s Wrong with Torts (II) In my previous post I suggested that torts are legal wrongs rather than moral wrongs, and that the concept of a legal wrong is not vacuous, but instead refers to the violation of a directive...
Introducing Guest Blogger Tim Lytton
Posted on November 12, 2009Monday's Guest Blogger is Tim Lytton. Lytton is currently the Albert and Angela Farone Distinguished Professor of Law at Albany Law School, where he teaches Administrative Law, Advanced Torts, ADR, Con Law, Jurisprudence, Legislation, Regulatory Law and Torts...
Toyota Sued Over Alleged "Sudden Acceleration" Problem
Posted on November 11, 2009Two L.A. residents have sued Toyota Motor Corp., alleging some Toyota and Lexus products manufactured since 2001 have been made with defective components causing sudden, unexpected acceleration. They are seeking class-action status. Toyota has focused on floor mats as the...
AAJ Fears Compromise on Tort Reform for Health Care Passage; Starts Ad Campaign
Posted on November 11, 2009Ben Smith at Politico.com has the story (and one of the internet ads). --CJR
Court Dismisses Consumer Fraud Claims Against Sears
Posted on November 10, 2009The Northern District of Illinois has dismissed with prejudice consumer fraud claims in a putative class action against Sears based on an alleged design defect that prevented adequate water drainage and proper self-cleaning. The court held that plaintiffs' consolidated complaint...
"Tort Bench and Jury Trials in State Courts, 2005"
Posted on November 10, 2009The DOJ's Bureau of Justice Statistics has released a new civil justice reports on "Tort Bench and Jury Trials in State Courts, 2005." This report [d]iscusses tort cases concluded by a bench or jury trial in a national sample of...
Guest Blogger John C.P. Goldberg: What's Wrong with Torts?
Posted on November 09, 2009What?s Wrong with Torts? Torts are wrongs. The word ?tort? means ?wrong.? A standard definition of a tort is: ?a civil wrong, other than breach of contract, for which the courts will provide a remedy.? And yet the particular sense...
Judge Requests Mass Tort Status for New Jersey Birth Control Suits
Posted on November 07, 2009New Jersey Judge Donald Volkert Jr. has requested mass tort status for the products liability suits involving the birth control pills Yaz, Yasmin and Ocella. In his request to the Administrative Director of the Courts, Judge Volkert noted the large...
Personal Injury Roundup No. 57 (11/6/09)
Posted on November 06, 2009Reform, Legislation, Policy San Franciso City Attorney does FDA's job? Kellogg's withdraws "immunity banner" from sugary cereals following letter demand from City Attorney. (TortsProf, The Atlantic). Senators Graham and Chambliss propose "loser pays" rule...
Monday's Guest Blogger: John C.P. Goldberg
Posted on November 05, 2009John Goldberg is Professor of Law at the Harvard Law School. From 1995 until 2008, he was a faculty member of Vanderbilt Law School, where he served as Associate Dean for Research (2006-08). Professor Goldberg is an author of a...
Senators Graham & Chambliss Introduce "Loser Pays" Legislation
Posted on November 04, 2009United States Senators Lindsey Graham (R-SC) and Saxby Chambliss (R-GA) introduced legislation on Monday that would require the loser to pay the winner in some medical malpractice suits. The Fair Resolution of Medical Liability Disputes Act of 2009 would require...
A European Symposium on Guido Calabresi
Posted on November 04, 2009Larry Solum at Legal Theory Blogis reporting about a symposium dedicated to the work of Guido Calabresi. Here are the papers: Roger van den Bergh (Erasmus University Rotterdam (EUR) - Erasmus School of Law), Introduction: The Impact of Guido Calabresi...
Iowa Supreme Court on Subsequent Remedial Measures
Posted on November 03, 2009The Iowa Supreme Court recently addressed the subsequent remedial measures doctrine. Under this evidentiary rule (adopted in Iowa and other states), evidence of subsequent remedial measures cannot be used to prove negligence but can be used to prove strict liability...
San Francisco vs. Snap, Crackle & Pop
Posted on November 03, 2009San Francisco's City Attorney has sent a warning letter to the Kellogg Food Company about the big "Now Helps Support Your Child's Immunity" banner on its Rice Krispie's cereals. The City Attorney expresses concern that the "Immunity Claims may mislead...
Solicitor General's Views Sought in Alien Tort Statute Case
Posted on November 02, 2009The SCOTUSBlog has the relevant links. The issue: Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or...
Sex Offenders, Disclosure, and Tort Law
Posted on November 02, 2009Shelley Ross Saxer (Pepperdine) has posted to SSRN 'Am I My Brother's Keeper?': Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity. Here is the abstract: Under common law principles, landowners do not have a duty...
Personal Injury Roundup No. 56 (10/30/2009)
Posted on October 30, 2009Happy Halloween! In our house, we'll have Susan B. Anthony and a drowned sailor. Yours? Reform, Legislation, Policy Did you see the guest post on tort law and climate change? You should. (TortsProf) Alien Tort Claims Act claims continue and...
Top 10 Recent SSRN Torts & Products Liability Downloads
Posted on October 29, 2009Here are the top torts and products liability papers announced on SSRN within the last 60 days: Rank Downloads Paper Title 1 71 Structured Settlements and Single-Claimant Qualified Settlement Funds: Regulating in Accordance with Structured Settlement History Jeremy Babener, New...
Aluminum Bat Verdict: $850,000
Posted on October 29, 2009A jury in Montana found the manufacturer of Louisville Slugger aluminum bats liable for failure to warn adequately in the death of an 18-year-old. (NYT) (Maryland Injury Lawyer Blog) --CJR
Frakes on the Incentive Effects of Medical Malpractice Standards of Care
Posted on October 28, 2009Michael Frakes (Harvard) has posted to SSRN Malpractice Standards of Care and Regional Variations in Physician Practice Styles. Here is the abstract: Physician practices vary in a striking and persistent manner across different regions of the United States...
Food Industry Drops "Smart Choices" Labeling
Posted on October 27, 2009On the heels of the FDA's letter to industry noted in Friday's Round-Up, food companies have halted the "Smart Choices" labeling program, which puts a green check mark on the front of packages to indicate that the product is a...
South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million
Posted on October 27, 2009Sometimes it is better to wait on the sidelines... South Carolina did not participate in the collective suit by 32 states against Pfizer for its off-label marketing of the anti-psychotic drug, Zyprexa. If South Carolina has joined that suit, it...
Guest Blogger Adam Scales: Tort Law and Climate Change
Posted on October 26, 2009I have always been a little uncomfortable with the purported distinction between "public" and "private" law, as applied to Torts. By the second half of the 20th Century, the aspirations of tort law were certainly public-regarding, aimed not just at...
Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz
Posted on October 24, 20092009 Kansas Law Review Symposium Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz October 30, 2009 Green Hall, 1535 West 15th Street, Lawrence, Kansas 66045 This Symposium explores the state of aggregate justice one decade after the Supreme Court...
Personal Injury Roundup No. 55 (10/23/09)
Posted on October 23, 2009Happy Fall to all our readers. . . here's what happened this lovely fall week in the world of torts. Reform, Legislation, Policy FDA issues a "letter to industry" that the agency will take enforcement action aginst false or misleading...
Monday's Guest Blogger: Adam Scales
Posted on October 22, 2009Adam F. Scales is an Associate Professor of Law at Washington & Lee University School of Law. He graduated, Phi Beta Kappa, with a B.A. from the University of Massachusetts in 1991 and received his J.D. from the University of...
AL: Pharmaceutical Companies Did NOT Cause State to Over-Reimburse
Posted on October 21, 2009On Friday, the Alabama Supreme Court reversed multi-million dollar trial-court judgments against pharmaceutical companies that had allegedly caused the state to over-reimburse pharmacies and physicians for the medicines they provided to Medicaid patients...
Massachusetts Recognizes Medical Monitoring Cause of Action
Posted on October 21, 2009On Monday, the Supreme Judicial Court of Massachusetts recognized medical monitoring as a viable cause of action in the Commonwealth of Massachusetts. The SoL is governed by the discovery rule. The opinion in Donovan v. Philip Morris USA [pdf] is...
Guest Blogger Victor Schwartz on "A Government Appointed Independent Commission on Judicial Reform Is Considering Establishing a Right of Appeal in West Virginia: It Should Be Done"
Posted on October 20, 2009Today, we have a special guest blogger, Victor Schwartz, who, among other notable accomplishments, is one of the authors of the widely-used torts casebook, Prosser, Wade & Schwartz's Torts. * * * Recently, I responded affirmatively to the very gracious...
Guest Blogger Martha Chamallas: Critical Torts Theory and the Measure of Injury
Posted on October 19, 2009If you are not a torts professor, you might think it odd that the two approaches that currently dominate tort theory are ?law and economics? and ?corrective justice.? Although there are major differences in the two approaches -- with ?law...
Hersch, O'Connell, & Viscusi Reply to Black, Hyman, & Silver on Early Offers Med Mal Savings
Posted on October 17, 2009Joni Hersch (Vanderbilt), Jeffrey O'Connell (Virginia), and Kip Viscusi (Vanderbilt) have posted to SSRN Reply to the Effects of "Early Offers" in Medical Malpractice Cases: Evidence from Texas. Here is the abstract: This article is a Reply to the critique...
Personal Injury Roundup No. 54 (10/16/09)
Posted on October 16, 2009Reform, Legislation, Policy U.S. Supreme Court dictum on constitutional implications of class action procedure (Drug & Device Law) The Pop Tort on the Texas med mal system (The Pop Tort) Ralph Nader on the CBO's report that tort reform would...
Monday's Guest Blogger: Martha Chamallas
Posted on October 15, 2009Martha Chamallas is the Robert J. Lynn Chair in Law at The Ohio State University's Moritz College of Law. She is a leading scholar in a number of fields, including torts, employment discrimination law, and legal issues affecting women. Professor...
"Hold Your Wee for a Wii" Closing Arguments
Posted on October 14, 2009Coverage is here. The plaintiffs' attorney asked for $24 to $34 million, about $2 million of which is based on economic harm, the balance in emotional harm.
O'Connell & Born on Early Offer Savings for Products Liability
Posted on October 14, 2009Jeffrey O'Connell (Virginia) and Patricia Born (Florida State Business) have posted to SSRN The Similar Cost and Other Advantages of an Early Offer Reform for Products Liability Claims for Personal Injury Compared to General Liability Claims Therefor...
CBO: Med Mal Tort Reform Would Save $54 B Over Ten Years
Posted on October 14, 2009The Congressional Budget Office estimated that a $500,000 cap on punitive damages and a $250,000 cap on pain-and-suffering damages would save $54 billion over ten years and lower liability insurance premiums by 10%. (CNN) The Center for Justice & Democracy...
Zicam MDL Centralized in Arizona
Posted on October 13, 2009Pursuant to an order issued last Friday, nine pending Zicam suits have been consolidated for pre-trial proceedings before U.S. District Judge Frederick J. Martone of the U.S. District Court for the District of Arizona. The consolidated cases involve claims that...
Guest Blogger John Oberdiek on "Corrective Justice and its Independence as an Ideal"
Posted on October 12, 2009Although Aristotle first distinguished the two ideals more than 2300 years ago, the relationship between corrective and distributive justice has been the topic of a good deal of discussion in recent years. Indeed, I just returned from a roundtable on...
Personal Injury Roundup No. 53 (10/9/2009)
Posted on October 09, 2009I'm back from a fun weekend at the Austin City Limits Music Festival (highlights: Dirty Projectors, Flogging Molly, Avett Brothers, plus great stuff on the kids' stage). Here's what happened during the week following: Reform, Legislation, Policy Sen. Al Franken's...
Introducing Guest Blogger John Oberdiek
Posted on October 08, 2009Monday's guest blogger is John Oberdiek. Oberdiek is currently an Associate Professor of Law at Rutgers School of Law - Camden. He teaches Torts and Administrative Law as well as several upper-level law and philosophy courses, including a survey of...
AALS Torts & Compensation Systems Annual Section Newsletter
Posted on October 07, 2009Here is the annual newsletter of the AALS Torts & Compensation System Section: Download AALS Torts Section Newsletter The newsletter provides a great roundup of torts scholarship, developments and news. Our thanks to Mike Rustad for highlighting TortsProfs in the...
"Hold Your Wee for a Wii" Trial Ends
Posted on October 07, 2009No verdict yet. An overview is available here. Looking around briefly, it appears that this blog is providing complete trial coverage. --BC
Aid Must Be "Purposeful" Under Alien Tort Claims Act
Posted on October 06, 2009In a decision (pdf) issued on Friday, the Second Circuit held that aiding-and-abetting liability under the Alien Tort Claims Act requires "purpose rather than knowledge alone." New York Law Journal and Am Law Litigation Daily have more. - SBS
First Amendment Challenge to FDA's Off-Label Use Prohibition
Posted on October 06, 2009Bloomberg reports that Allergan has sued the FDA and Justice Department challenging FDA rules that prohibit manufacturers from promoting off-label use. The complaint seeks a preliminary injunction barring enforcement of the rules. - SBS
Guest Blogger Frank Vandall: Justice Rewritten
Posted on October 05, 2009I thought I would use my time as a guest blogger to discuss my forthcoming book ?Justice Rewritten: An Historical, Political and Economic Analysis of Civil Justice.? It will be published by Oxford University Press and is scheduled for late...
WI: $3.7M Med Mal Verdict
Posted on October 03, 2009Yesterday, a jury in Wisconsin awarded the family of a deceased farm worker $3.7 million in damages for medical malpractice. Gustavo Espinal-Santos died Jan. 1, 2004, after contracting blastomycosis, a fungal infection often transmitted through water or soil...
Personal Injury Roundup No. 52 (10/02/09)
Posted on October 02, 2009I know we've celebrated one year of having the Roundup already, but we've missed a few weeks. This 52nd Roundup represents a full year of actual posts. Reform, Legislation, Policy Philip Howard on (lack of) med mal reform (WSJ via...
Monday's Guest Blogger: Frank Vandall
Posted on October 01, 2009Frank J. Vandall is Professor of Law at Emory University, where he has been on faculty since 1970. He received a B.A. from Washington and Jefferson College in 1964 and a J.D. from Vanderbilt University in 1967. Professor Vandall also...
"Hold Your Wee for a Wii" Trial in Progress
Posted on September 30, 2009I don't expect to do regular updates, but today's update might be an interesting basis for discussions of knowledge and foreseeability. --BC
Cupp on Preemption
Posted on September 30, 2009Richard Cupp (Pepperdine) has posted to SSRN Preemption's Rise (and Bit of a Fall) as Products Liability Reform: Wyeth, Riegel, Altria, and the Restatement (Third)'s Prescription Product Design Defect Standard. Here is the abstract: This Article is Professor Cupp's most...
Cheng & Yoon on "Predicting the Constitutionality of Punitive Damages"
Posted on September 29, 2009Edward Cheng (Brooklyn) and Albert Yoon (Toronto) have posted their recent article, "Predicting the Constitutionality of Punitive Damages: A Statistical Approach." The abstract provides: The constitutional doctrine governing punitive damages captivates legal scholars and jurists in part because it is...
Some Data Points On Coffee
Posted on September 29, 2009Last week's guest post from Michael Rustad discussed (among other things) the infamous Liebeck v. McDonald's case, triggering a response from Ted Frank (in the comments) and an additional post from Rustad. I start my Torts class with asking students....
Guest Blogger Jonathan Cardi: "Does Tort Law Really Deter?"
Posted on September 28, 2009Last Spring, I participated in a conference at Wake Forest on the Restatement (Third) of Torts. As is usually the case when a group of law professors get together, a number of panelists spoke about whether this or that Restatement...
Guest Blogger Mike Rustad Responds to Ted Frank
Posted on September 28, 2009Mr. Frank takes issue with my statement that McDonald's coffee was "superheated" in my recent guest post here on TortsProf. He writes that other coffee vendors also sold their coffee at 190 degrees. He also states that some home brewed...
Ted Eisenberg vs. U.S. Chamber of Commerce
Posted on September 26, 2009As Chris previously reported, a new article by Ted Eisenberg (Cornell) takes on the Chamber of Commerce's annual "state liability ranking study," which ranks the lawsuit climate in all fifty states. In an interview with the WSJ Law Blog, the...
Personal Injury Roundup No. 51 (9/25/09)
Posted on September 25, 2009Here's what happened during the first week of fall in the world of torts: Reform, Legislation, Policy Senate Finance Committee marked-up its health care reform bill. (FDA Law Blog) Congressional Research Service issues report on health care reform. (Open CRS)...
Monday's Guest Blogger: Jonathan Cardi
Posted on September 24, 2009Jonathan Cardi is the Dorothy Salmon Professor of Law at the University of Kentucky, where he teaches in the areas of Copyright, Torts, Jurisprudence, and Remedies. Professor Cardi?s primary research interests are in tort law, most recently the nature and...
More Torts and Pop Culture
Posted on September 23, 2009Torts aficionados should be proud. Our subject has been used to prove the bona fides of a lawyer in the movie "Rachel Getting Married," a powerful, disturbing movie about family dynamics and the consequences of actions. It features Anne Hathaway...
Hersch & Viscusi on "Saving Lives through Punitive Damages"
Posted on September 23, 2009Joni Hersch & Kip Viscusi (Vanderbilt) have posted to SSRN Saving Lives through Punitive Damages. Here is the abstract: This article proposes that the value of statistical life be used to set the total damages amount needed for deterrence when...
"Pro & Con: Should Liability Damages Caps Be A Part of Health Reform?"
Posted on September 22, 2009The Atlanta Journal-Constitution has a debate on whether liability damages caps should be a part of health reform. Randolph W. Page of the Heritage Foundation takes the "pro" side, while C. Andrew Childers of Childers & Schlueter takes to "con"...
Wyeth v. Levine Post-Script
Posted on September 22, 2009Pharmalittle brings news of an interesting post-script to the Supreme Court's decision in Wyeth v. Levine (pdf) last March. In Wyeth, Diana Levine won a $7.4 million damages award against Wyeth after losing her arm to gangrene from an improper...
Guest Blogger Mike Rustad on "Unstuffing the Dog: Training Better Attorneys by Introducing Real-World Concerns in the Teaching of Torts"
Posted on September 21, 2009Value-neutrality was a term coined by Max Weber, a founding father of sociology. Weber contended that sociologists should be apolitical, objective, and avoid injecting ideological assumptions into their teaching as well as their research. Weber?s preference has gained widespread acceptance...
White House Announces Grants For "New Medical Liability Models"
Posted on September 19, 2009Following up on Tony Sebok's post yesterday, we now have some more details on President Obama's "demonstration projects" on tort reform. Specifically, Secretary of Health and Human Services Kathleen Sebelius announced $25 million in grants for states "to try out...
Guest Blogger Tony Sebok on Health Insurance Reform and Tort Reform - Part II
Posted on September 18, 2009As promised, I want to explore the debate over tort reform from a systematic perspective. The President?s embrace of tort reform in medical malpractice?tepid as it may be?shows that the issue has moved to the mainstream. The significance of the...
No Roundup Today
Posted on September 18, 2009The Roundup will return next Friday, September 25th. - SBS
Introducing Guest Blogger Mike Rustad
Posted on September 17, 2009Monday's Guest Blogger is Mike Rustad. Rustad is currently the Hugh C. Culverhouse Visiting Chair at Stetson Law School. He is also the the Thomas F. Lambert Jr. Professor of Law and co-director of the Intellectual Property Law Concentration at...
Halliburton Rape Case Heading to Court, Not Arbitration
Posted on September 16, 2009The WSJ Law Blog has details. We posted about the case before here. --BC
Eisenberg on the Chamber of Commerce's Liability Survey
Posted on September 16, 2009Theodore Eisenberg (Cornell) has posted to SSRN U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business. Here is the abstract: The U.S. Chamber of Commerce uses its Survey of State Liability to criticize judiciaries and seek legal...
GA Supreme Court to Decide Constitutionality of Med Mal Damage Caps
Posted on September 16, 2009Yesterday the Georgia Supreme Court heard arguments in a case challenging the 2005 law imposing a $350,000 cap on non-economic damages in medical malpractice cases. The trial judge ruled the caps unconstitutional. Coverage is here: Atlanta Journal Constitution, Atlanta Business...
Paxil Lawsuit Began Yesterday in Philadelphia
Posted on September 15, 2009The first Paxil birth defect lawsuit against GlaxoSmithKline was scheduled to being yesterday in Philadelphia. Bloomberg and About Lawsuits have stories on the suit. However, I have not found any stories confirming that the trial did, in fact, begin yesterday,...
First Fosamax Trial Ends In Mistrial
Posted on September 15, 2009The New York Times reports that, on Friday, a federal judge in New York declared a mistrial in the first Fosamax trial to reach a jury. A copy of the plaintiff's motion for mistrial(pdf) is also available from the NYT....
Guest Blogger Tony Sebok On Health Insurance Reform and ERISA
Posted on September 14, 2009This is a good week to be guest-blogging at TortsProf. President Obama?s speech last week in defense of healthcare reform won the longest and most sustained applause from the Republican side of the aisle when he mentioned tort reform. Some...
Kuney on Successor Liability
Posted on September 12, 2009George Kuney (Tennessee) has posted to SSRN Appendix to George W. Kuney, A Taxonomy and Evaluation of Successor Liability. Here is the abstract: This appendix to an earlier published article represents the author?s attempt to continue to explain the characteristics...
Personal Injury Roundup No. 50 (9/11/09)
Posted on September 11, 2009My kids finally started school this week, so -- after three weeks teaching -- it finally actually feels like fall here. Reform, Legislation, Policy The "uneasy case" for products liability (SSRN) Obama's speech makes limited reform suggestions (Washington Post, Overlawyered...
Introducing Guest Blogger Tony Sebok
Posted on September 10, 2009Monday's Guest Blogger is Tony Sebok. Sebok is currently a Professor of Law at Cardozo School of Law (Yeshiva University). At Cardozo, he teaches Torts and Advanced Torts. Before joining the Cardozo faculty, Sebok was the Centennial Professor of Law....
Shavell & Polinsky on the Uneasy Case for Products Liability
Posted on September 09, 2009Steven Shavell (Harvard) & Mitchell Polinsky (Stanford) have posted to SSRN The Uneasy Case for Products Liability. Here is the abstract: We explain in this Article that the benefits of product liability may well be outweighed by its costs in...
Top 10 Recent SSRN Torts & Products Liability Downloads
Posted on September 09, 20091 243 Responsibility & the Negligence Standard Joseph Raz, Joseph Raz, University of Oxford - Faculty of Law, Columbia Law School, Date posted to database: July 21, 2009 Last Revised: September 7, 2009 2 103 Justifying the Structured Settlement Tax...
New Twist on Vicarious Liability: Las Vegas Hardrock Owners Sued for Death of CEO's Girlfriend
Posted on September 08, 2009Matthew Heller at On Point Legal News reports on a new twist on an employer's vicarious liability for its employee's torts: Taking employment law into uncharted waters, a $645 million lawsuit alleges the operator of the Hard Rock resort in...
Class Action Suit Filed Against Applebee's For Allegedly Misleading Nutrition Values
Posted on September 08, 2009The Lexington-Herald reports that two Kentucky women have filed a class action suit against Applebee's for fraud based on allegedly false nutrition values on its menus. Similar class actions are already pending in Ohio, Illinois and Kansas. - SBS
Happy Labor Day!
Posted on September 07, 2009Enjoy your day away from classes. Guest Blogger Monday resumes next week. --CJR
Podcast on Medical Apologies
Posted on September 05, 2009WHYY has a podcast on medical apologies featuring Richard Boothman, chief risk officer at the University of Michigan Health System, and Thomas Gallagher, a physician and associate professor of medicine at the University of Washington Medical Center. Listen here: http://www...
Personal Injury Roundup No. 49 (9/4/09)
Posted on September 04, 2009Reform, Legislation, Policy OK: Tort reform takes effect on 11/1, potential claimants urged to file now. (NewsOk, via Olson/Overlawyered) NY: Tightening comparative negligence in med mal cases? (Olson/Point of Law) In support of medical checklists as tort reform...
Guest Blogger Monday Series
Posted on September 03, 2009The reaction to Guest Blogger Monday has been very positive. So far, Jeffrey O'Connell (Virginia) wrote on "Tort Liability as Social Insurance" and Keith Hylton (Boston University) posted on "Is Tort Law Economically Efficient?". We will take a break this...
Alan Calnan's "Duty and Integrity in Tort Law" Available from CAP
Posted on September 02, 2009Duty and Integrity in Tort Law by Alan Calnan (Southwestern) is now available through Carolina Academic Press. Here is the abstract: Duty and Integrity in Tort Law is a comprehensive, versatile and revolutionary examination of the tort concept of duty...
Stier on Verdict Variability and the Mass Tort Class Action
Posted on September 02, 2009Byron Stier (Southwestern) has posted to SSRN Jackpot Justice: Verdict Variability and the Mass Tort Class Action. Here is the abstract: Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands...
$3.5 M Misdiagnosis Verdict in Texas
Posted on September 01, 2009About Lawsuits reports that a Texas jury has returned a $3.5 million verdict in a misdiagnosis of cancer case. - SBS
Allegations of Evidence Destruction in Toyota Rollover Suits
Posted on September 01, 2009The ABA Journal reports that a former in-house counsel at Toyota has filed a racketeering suit against Toyota alleging that the company "destroyed evidence in hundreds of rollover suits." - SBS
Guest Blogger Keith Hylton: "Is Tort Law Economically Efficient?"
Posted on August 31, 2009A great deal has been written about the economic efficiency of the law, and of tort law in particular. There are arguments to be made on both sides, and I will not repeat all of them here. The argument for...
Statute of Repose Win in Fen-Phen Appeal
Posted on August 29, 2009Over at Drug & Device Law, Jim Beck writes about the Sixth Circuit's decision affirming summary judgment for Wyeth based on Tennessee's statute of repose. - SBS
Personal Injury Roundup No. 48 (8/28/09)
Posted on August 28, 2009We just finished our first full week of classes here at Charleston. Here's what happened this week in torts: Reform, Legislation, Policy Health reform debate continues to percolate. (WaPo, AP, ABC News Political Punch) Representative Henry Waxman (D-CA) takes on...
Introducing Guest Blogger Keith Hylton
Posted on August 27, 2009Monday's Guest Blogger is Keith Hylton. Hylton is currently the Honorable Paul J. Liacos Professor of Law at Boston University School of Law. Hylton joined the BU Law faculty in 1995 after teaching for six years and receiving tenure at...
The Prosser Notebook is Available Online at Berkeley Law Library
Posted on August 26, 2009Our regular readers know that a member of my first Torts class was kind enough to share with me the Torts notebook of his grandfather, Leroy S. Merrifield. Mr. Merrifield's first year at the University of Minnesota Law School was...
Porat & Stein on Liability for Future Harm
Posted on August 26, 2009Ariel Porat (Tel Aviv) & Alex Stein (Cardozo) have posted to SSRN Liability for Future Harm. Here is the abstract: This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine...
Torts Opening at Albany
Posted on August 25, 2009Peter Halewood asked us to post this announcement from Albany Law School: Tenure-Track Positions ALBANY LAW SCHOOL invites applications for as many as seven tenure-track positions beginning in the fall of 2010. Appointment will be made at the assistant, associate...
"Flip and Fall"
Posted on August 25, 2009Jonathan Turley reports that a Chicago woman who fell while walking on the floor near a dolphin tank is suing the zoo for ?recklessly and willfully trained and encouraged the dolphins to throw water at the spectators in the stands,...
Jeffrey O'Connell: Tort Liability as Social Insurance
Posted on August 24, 2009Though not often thought of this way, tort liability coverage for personal injury can be best seen as social insurance. Such a vantage invites the government to take a firm hand in shaping such coverage rather than leaving it to...
Family of Flight Attendant on Air France Flight 447 Seeks Suit
Posted on August 22, 2009The family of a flight attendant killed when AF447 crashed near the coast of Brazil on June 1st is seeking legal action against the airline. Reuters has the details. --CJR
Call for Articles and Essays: Recent Developments in New York Law
Posted on August 21, 2009Posted by request: The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to our second annual issue addressing recent developments in New York law to be published in Spring 2010...
Personal Injury Roundup No. 47 (8/21/09)
Posted on August 21, 2009It finally feels like summer in western Massachusetts, and yet here we are finishing up 1L orientation, with classes starting next week! I've got to get to school for the orientation picnic, so it'll be a little briefer than usual......
Monday's Guest Blogger: Jeffrey O'Connell
Posted on August 20, 2009Our first guest blogger is the University of Virginia's Jeffrey O'Connell, co-author of the principal work that proposed no-fault insurance. After O'Connell graduated from Harvard Law School, he was a trial lawyer in Boston with the firm of Hale &...
Is "Gluten-Free Beer" Really "Beer"?
Posted on August 19, 2009As USA Today Reports, on Monday, the FDA began regulating the world of "gluten free beers." These beverages are not made from the malted barley of the traditional sudsy brew, but from alternative ingredients such as malted sorghum or rice....
Californians Sue Facebook Over Privacy Issues
Posted on August 18, 2009According to the Associated Press, five Californians have filed suit against Facebook alleging privacy law violations. - SBS
Announcing Guest Blogger Monday!
Posted on August 17, 2009We are delighted to announce a new feature at TortsProf Blog: Guest Blogger Monday. A distinguished line-up of Torts professors will be visiting on Mondays and writing about their recent scholarship, teaching ideas, and other torts-related topics. Our fall schedule...
Products Liability Prof Blog Seeks Products Liability Prof Bloggers
Posted on August 17, 2009Head there for details. We certainly like being part of the network and look forward to seeing who takes over that blog. --BC
Mandatory National Reporting of Medical Errors?
Posted on August 16, 2009The "Dead by Mistake" series reported by Sheila here is affecting policy debates. Rep. Jim McDermott, a Seattle Democrat heavily involved in health reform legislation, believes mandatory national reporting of medical errors should be a top priority in Congress...
Personal Injury Roundup No. 46 (8/14/09)
Posted on August 14, 2009Most of us are gearing up for classes next week. I hope you enjoyed your last week of summer. Reform, Legislation, Policy Richard Epstein on preemption in Forbes (Via Drug and Device Law) "Fumbled" health care "handoffs" (The PopTort) NY:...
Survivors' "Hold Your Wee for a Wii" Suit Settles; Wrongful Death Case to Start 9/8
Posted on August 14, 2009So reports local station KCRA. Details are, as usual, confidential. Prior reports are linked to from here. --BC
Burch on Weinstein on Mass Torts
Posted on August 13, 2009Elizabeth Chamblee Burch (Florida State/Mass Torts Prof) has posted her essay A New Way Forward: A Response to Judge Weinstein on SSRN. Here is the abstract: This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of...
"Dead By Mistake"
Posted on August 12, 2009From The Pop Tort comes word of a national investigative series by Hearst Publications on medical malpractice deaths. Hearst explains the series in this way: Dead by mistake, the comprehensive story you see on this web site, is the result...
California Enacts Good Samaritan Bill
Posted on August 11, 2009From Walter Olson at Point of Law: Governor Arnold Schwarzenegger has signed two bills that extend legal immunity to Good Samaritans. - SBS
Fast Track for Chinese Drywall Cases
Posted on August 11, 2009The Daily Business Review (via law.com) reports that U.S. District Judge Eldon E. Fallon (New Orleans) will select five of the nearly 600 Chinese drywall cases for bellwether trials, possibly before the end of the year: Fallon has ordered each...
"Hold Your Wee for a Wii" Case Heading to Trial
Posted on August 11, 2009The Sacramento Bee has details on the most recent events in the litigation resulting from an ill-conceived competition held by a radio station a couple of years ago. (Prior posts here.) As the name of the contest suggests, contestants were...
Rare Win for Alien Tort Claim Plaintiffs
Posted on August 10, 2009Last week, a Brooklyn jury awarded $1.75 million to a Bangladeshi man who was tortured by a Bangladeshi paramilitary group. The plaintiff sued under the Alien Tort Claims Act and the Torture Victims Protection Act. American Lawyer (via law.com) has...
Mello & Studdert on Individual and System Factors in Med Mal
Posted on August 08, 2009Michelle Mello (Harvard--Health Policy & Management) & David Studdert (University of Melbourne--Law & Medicine) have posted the abstract to their latest article, Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries, on SSRN...
Personal Injury Roundup No. 45 (8/7/09)
Posted on August 07, 2009Here's what happened last week in the world of torts: Reform, Legislation, Policy House passes Food Safety Enhancement Act of 2009. (FDA Law Blog, Overlawyered, Mass Tort Defense) More on health reform. (NYT, ABC News Political Punch) State attorneys general...
Raz on the Negligence Standard
Posted on August 06, 2009Joseph Raz (Oxford & Columbia Law) has just updated his recent SSRN posting Responsibility & the Negligence Standard. Here is the abstract: The paper has dual aim: to analyse the structure of negligence, and to use it to offer an...
Crocs Settles Design Defect Suits
Posted on August 05, 2009Crocs - the maker of popular rubber clogs, not the man-eating animal - has settled at least five products liability suits alleging that the shoes are unsafe for children to wear on moving escalators. On Point News has more. -...
Blackwater Founder Implicated (in Tort Suit Affidavits) in Murder
Posted on August 05, 2009We've previously noted litigation against Blackwater International, brought by Iraqi civilians. This week, The Nation reports that affidavits filed in that case allege that the founder of the company, Erik Prince, was connected to homicide: A former Blackwater employee and...
Charleston Super Store Fire Defendants Try To Add City To Case
Posted on August 04, 2009Awhile ago, the families of several Charleston fire fighters who died in a horrific furniture store fire back in 2007 filed suit against the store and a furniture manufacturer. On Monday, attorneys for the defendants argued that the City of...
And the health care debate takes to the road...
Posted on August 04, 2009The New York Times reports on the plans of both Democrats and Republicans to take the health care debate on the road in a series of town hall meetings, radio and television appearances. - SBS
Becker & Posner on Health Reform and Obesity
Posted on August 03, 2009Judge Richard Posner and Professor Gary Becker address health reform and obesity in this week's blog posts. - SBS
Early Offers: Another View of the Empirical Evidence
Posted on August 02, 2009Bernard Black (Texas), David Hyman (Illinois), & Charles Silver (Texas) have posted to SSRN The Effects of "Early Offers" in Medical Malpractice Cases: Evidence from Texas. Here is the abstract: Medical malpractice litigation is costly and time-consuming...
Personal Injury Roundup No. 44 (7/31/09)
Posted on July 31, 2009After a longer-than-planned-for absence (the reason noted below), I'm back at the TortsProf blogging. As I announced before, I'll be a bit more irregular than usual, with my new duties as Associate Dean for External Affairs at WNEC, but I...
A Tweet Tort
Posted on July 30, 2009A Chicago landlord has sued a tenant for libel based on a "malicious and defamatory" tweet about her apartment to her 20 Twitter followers. ABA Journal and Jonathan Turley both have more. Here's a copy of the complaint (pdf). -...
$3.4M Mesothelioma Verdict
Posted on July 30, 2009A California jury has awarded $3.4 million to the family of a former Manville plant worker. About Lawsuits has more. - SBS
OT: The Legal Limit by Martin Clark
Posted on July 29, 2009Ah, summer! The scholarship, the sun, the books! I just read a terrific book I want to recommend to our readers: Martin Clark's The Legal Limit. The book has been out for a year, and is now available in paperback....
Top 10 Recent SSRN Torts & Products Liability Downloads
Posted on July 29, 2009RECENT HITS (for all papers announced in the last 60 days) TOP 10 Papers for Journal of Torts & Products Liability Law May 30, 2009 to July 29, 2009 Rank Downloads Paper Title 1 124 The Decision to Award Punitive...
No False Imprisonment for Forced Deportation
Posted on July 28, 2009As the New York Times reports, a Florida jury found that a hospital did not act unreasonably when it chartered a plane and repatriated a severely brain injured illegal immigrant to Guatemala (after caring for the patient for 3 years...
Legislators Take on Direct-To-Consumer Drug Advertising
Posted on July 28, 2009Sunday's New York Times had an article summarizing the various efforts in Congress to control direct-to-consumer drug advertising. Bills have been introduced that would ban ads for certain drugs during prime time, or alternatively, amend the tax code to eliminate...
Internet Images and the Right to Privacy
Posted on July 27, 2009Jonathan Bick has published "Pictures from Public Places Not Private" in the New Jersey Law Journal. The article provides a nice summary of the tort and privacy issues surrounding the use of public images on the Internet such as Google...
$75M Med Mal Verdict Overturned in NJ
Posted on July 25, 2009The largest med mal verdict in New Jersey history was overturned on Thursday due to numerous trial errors, particularly during jury selection. There's a lot of coverage: Philadelphia Inquirer, The Star-Ledger, NJ.com. --CJR
Personal Injury Roundup No. 43 (7/24/09)
Posted on July 24, 2009It is the dog days of summer here in sunny South Carolina. I hope you are staying cool. Here's what happened this past week in the world of torts: Reform, Legislation, Policy Saying "sorry" works for Michigan doctors. (KIMA TV...
Engel & McCann on Tort as Cultural Practice
Posted on July 23, 2009David Engel (Buffalo) & Michael McCann (Washington-Political Science) [Not Michael McCann of Vermont Law, Sports Law Blog, and Sports Illustrated fame] have posted to SSRN Introduction: Tort Law as Cultural Practice. This essay serves as an introduction to a forthcoming...
Roethlisberger Sued for Sexual Assault
Posted on July 23, 2009Harrisburg is a town of divided NFL loyalties. Leaving aside the New York teams, four clubs vie for fans' loyalty: Philadelphia, Pittsburgh, Baltimore, and Washington. I'm partial to the Iggles myself, but Pittsburgh has been successful lately, and a large...
$24M Med Mal Verdict In Tennessee
Posted on July 22, 2009A Tennessee jury has awarded nearly $24 million in a breast cancer misdiagnosis suit. AboutLawsuits has more. - SBS
7M Verdict in Mississippi Lead Paint Suit
Posted on July 22, 2009Walter Olson (Point of Law) collects links on defendant Sherwin Williams's post-verdict motions in the $7M lead paint verdict down in Mississippi. - SBS
EU Approves Pfizer Takeover of Wyeth
Posted on July 21, 2009The European Commission has approved Pfizer's takeover of Wyeth. U.S. approval is still pending. Reuters has more. - SBS
Wrongful Provision of a Car?
Posted on July 21, 2009The parents of a Staten Island police man who was killed during a traffic stop have filed a wrongful death suit against the shooter's employer - a Long Island car dealership. According to the Staten Island Advance, the suit alleges...
Bernstein on Asbestos Achievements
Posted on July 20, 2009Anita Bernstein (Brooklyn) has posted to SSRN a paper sure to generate discussion, Asbestos Achievements. Here is the abstract: This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs? bar call...
Avraham, Hyman, & Silver Op-Ed on Med Mal Damage Caps
Posted on July 19, 2009Ronen Avraham (Texas), David Hyman (Illinois--Law & Medicine), and Charles Silver (Texas) have published an op-ed on medical malpractice damage caps in the Fort Worth Star-Telegram. They are responding to Rep. Michael Burgess's bill to enact Texas-style damage caps for...
Personal Injury Roundup No. 42 (7/17/09)
Posted on July 17, 2009It's been a big week in Wisconsin. Reform, Legislation, Policy WI: Bill would expand parties who could bring a med mal death suit to include non-dependent family members (Wisconsin Radio Network) Point: John Avlon (Manhattan Institute)--"Sue City": The Big Apple's...
Punitive Damages: Common Law and Civil Law Perspectives
Posted on July 17, 2009Yesterday the Institute for European Tort Law (of which Ken Oliphant is director) and the European Centre of Tort and Insurance Law published their new book: Punitive Damages: Common Law and Civil Law Perspectives; Tort & Insurance Law, vol. 25...
Wells on Europe's Perspective on Punitive Damages
Posted on July 16, 2009Michael Lewis Wells (Georgia) has posted to SSRN A Common Lawyer's Perspective on the European Perspective on Punitive Damages. Here's the abstract: Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems...
Alternative Med Mal Proposals
Posted on July 16, 2009First up is hospital vicarious liability, promoted by Professor Philip Peters (Missouri) in a recent SSRN posting Making Hospitals Accountable. Here is the abstract: Modern health care is delivered by large teams of highly trained individuals in a complex web...
On Markel's Retributive Damages
Posted on July 15, 2009Over at The Legal Workshop, Cornell has posted my essay, "Through the Looking Glass: A Response to Professor Markel's Retributive Damages." In this essay, I take a look at "Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction" by...
Texting Tort
Posted on July 14, 2009A new one to add to your hypos for fall semester: A fifteen year old girl was walking and texting when she fell into an open manhole. The family plans to sue the city. Jonathan Turley has more. - SBS
King of Torts' Former House for Sale
Posted on July 14, 2009It could be yours for a mere $39.5 million. Details at the WSJ Law Blog. - SBS
Better Off Ted and Products Suits
Posted on July 14, 2009The ABC comedy Better Off Ted this week featured an episode centered on a products liability lawsuit. In it, the fictional-but-amusing Veridian Dynamics (which has, among other things, created "meat without cows" and "weaponized pumpkins") was sued for a perfume...
Gibson on "Doctrinal Feedback"
Posted on July 13, 2009Jim Gibson (Richmond), mostly an IP prof (and my former colleague from Williams & Connolly), has posted (a while ago) an interesting torts-related piece, Doctrinal Feedback and (Un)Reasonable Care. In it, he addresses the circularity of the standard of care...
Baker NYT Editorial: Liability=Responsibility
Posted on July 13, 2009On Saturday, Tom Baker (Penn) published an op-ed in the NYT on med mal reform. --CJR
AZ: Gov Signs Bill Raising Burden of Proof for ER Physicians
Posted on July 11, 2009Yesterday, Gov. Jan Brewer signed a bill into law requiring plaintiffs to prove malpractice against ER physicians by clear-and-convincing evidence. The new law takes effect on September 30th. Forbes.com has a brief story here. --CJR
OR: Family of 3-Year-Old Boy, Kaiser Permanente Settle Med Mal Suit
Posted on July 10, 2009The case caused The Oregonian to investigate the physician involved in 2005; multiple alleged errors were discovered. AboutLawsuits.com has the details.
MI Court: Damages for Caring for Kids Uncapped
Posted on July 09, 2009A divided Michigan Supreme Court has allowed to stand a ruling that a dead mother's family can sue for $1.4 M for lost household services. The defendants argued the damages were noneconomic and, thus, subject to a damages cap. I...
Logue on Coordinating Sanctions in Torts
Posted on July 09, 2009Kyle Logue (Michigan) has posted to SSRN Coordinating Sanctions in Torts. Here is the abstract: This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the...
Palin Threatens Defamation Suits
Posted on July 08, 2009Jonathan Turley reports that Sarah Palin's lawyer has sent "cease and desist" letters to the Washington Post and other news outlets regarding their reporting on her decision to leave office. Although the letter reportedly threatens a defamation suit, Turley notes...
Foundations of Torts 2d Edition Available
Posted on July 07, 2009A second edition of Foundations of Torts, co-edited by Saul Levmore (Dean, Chicago) and Cathy Sharkey (NYU), is now available: This is a completely revamped, updated version of the original 1993 edition, and is a valuable resource for torts professors...
Levaquin Suits Designated as Mass Tort in NJ
Posted on July 07, 2009New Jersey Law Journal (via law.com)reports that the New Jersey Supreme Court has designated the growing litigation over Levaquin, an antibiotic manufactured by Johnson & Johnson, as a mass tort. The case has been assigned to Atlantic County Superior Court...
Products Claim Against Boeing for "Fume Event" Sickness
Posted on July 04, 2009CNN has the details here. --CJR
Personal Injury Roundup No. 41 (7/03/09)
Posted on July 03, 2009Happy Fourth of July! Reform, Legislation, Policy Point: Richard Epstein on Medical Malpractice Reform (Olson/Point of Law) Counterpoint: Eric Turkewitz Responds (New York Personal Injury Law Blog) Alberto Bernabe has more here. Trials, Settlement and Other Ends NE: Inmate Kills...
Lay Perceptions of Strict Liability Standards in Mundane Cases
Posted on July 02, 2009Matthew Kugler (Princeton-Psychology), John Darley (Princeton), Joseph Sanders (Houston), & Lawrence Solan (Brooklyn) have posted to SSRN Riding a Bicycle is Not an Abnormally Dangerous Activity: Lay Perceptions and the Appearance of Strict Liability Standards in Mundane Cases...
Ross & Prince on Post-Sale Duties
Posted on July 02, 2009Kenneth Ross (Adjunct Minnesota & Products Liability Prof Blog) and J. David Prince (William Mitchell & Products Liability Prof Blog), in a recent article in the Brooklyn Law Review, provide an overview of post-sale duties in the Restatement (Third) of...
FDA Advisory Panel Recommends Ban on Percocet and Vicodin
Posted on July 01, 2009An FDA Advisory Panel has recommended a ban on drugs that combine narcotics with acetaminophin (i.e., Tylenol or Excedrin). As the New York Times reports: High doses of acetaminophen are a leading cause of liver damage, and the panel noted...
Scorned Husband Sues Wife's Alleged Lover
Posted on June 30, 2009A new alienation-of-affection case from Jonathan Turley: Wealthy car dealer Bob Rohrman (known as ?Bob Rohrrrrrrr-man? on his commercials) is suing a surgeon, Dr. Sami M. Bittar, who wooed his wife, Ronda. Of course, Rohrman must show that the couple...
G.M. Keeps Liability for Unfiled Products Claims
Posted on June 29, 2009As the New York Times reports, General Motors will retain liability for unfiled products liability claims as part of its bankruptcy. Previously-filed claims, however, will be part of the bankruptcy. A hearing on G.M.'s bankruptcy plan is scheduled for tomorrow...
The D.C. Metro Crash: Race to the Courthouse
Posted on June 29, 2009John Bratt, an associate of Ron Miller, has a post at Baltimore Injury Lawyer Blog. For those of you who are just-the-facts types: Train accident on 6/22 at 5:02 p.m.; first suit filed on 6/24. --CJR
Cookie Dough Suits Filed
Posted on June 27, 2009A California woman has filed suit against Nestle alleging that raw chocolate chip cookie dough gave her food poisoning, although no tests have confirmed any contamination in Nestle products and despite a clear warning on Nestle pre-packaged cookie dough not...
Who Wants to Be a TortsProf?
Posted on June 25, 2009I assure you it's fabulous! Prawfsblawg has an open thread for hiring chairs. At least three schools--Notre Dame, St. John's, and Lewis & Clark--have stated in interest in hiring for Torts. The full list, including contact information, is here. --CJR
Michigan Class Action Autism Settlement
Posted on June 24, 2009As the National Law Journal reports, Blue Cross Blue Shield of Michigan has agreed to a $1M settlement to reimburse at least 100 families for the costs of applied behavioral analysis treatment for their autistic children. - SBS
Ted Frank's New Blog
Posted on June 24, 2009Ted Frank of Overlawyered and Point of Law has launched a new blog: Center for Class Action Fairness, a project founded by Ted Frank to provide pro bono representation to consumers dissatisfied with court-appointed representatives in class actions, especially with...
Reminder: Prosser Award Nominations Due Next Week (July 1st)
Posted on June 23, 2009The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award. The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ...
AALS Torts Section Announces Panel on Richard Epstein
Posted on June 23, 2009Announcement and Call for Papers AALS Torts Group Section Meeting January 8, 2010, 8:30 ? 10:15 a.m. Panel: Richard Epstein?s Legacy in Torts. Richard Epstein is among the most prominent and influential torts scholars of our times. Unmatched in breadth,...
NYT Letters on Med Mal
Posted on June 22, 2009The NYT has a letters-to-the-editor section devoted to medical malpractice. --CJR
Miller & Tucker on Incentives of Adopting Electronic Medical Records
Posted on June 20, 2009Amalia Miller (Virginia-Economics) & Catherine Tucker (MIT-Management Science) have posted to SSRN Electronic Discovery and Electronic Medical Records: Does the Threat of Litigation Affect Firm Decisions to Adopt Technology? Here is the abstract: After firms adopt electronic information and communication...
Personal Injury Roundup No. 40 (6/19/09)
Posted on June 19, 2009I hope you are enjoying the opportunity to focus exclusively on scholarship as much as I am. Without further ado... Reform, Legislation, Policy Obama open to med mal reform, but not damage caps. (ABA Journal) States reform med mal for...
Obama to Embrace Apology Legislation as Med Mal Reform?
Posted on June 18, 2009So surmises McKnight's in this brief piece. --CJR
Korzec on Federalizing Products Liability
Posted on June 18, 2009Rebecca Korzec (Baltimore) has posted on SSRN her 2003 article Products Liability Harmonization: A Uniform Standard. Here is the abstract: Among industrialized nations, the United States is unique in addressing tort law at the state rather than the national level...
Have You Friended Your Drug Company?
Posted on June 17, 2009As the Washington Postreports, drug companies are getting creative in their marketing, using Facebook, Twitter, MySpace, YouTube and other on-line outlets to pitch their products. The FDA is watching the development with interest. "If drug companies or others working on...
Democrats Put Tort Reform "On the Table"
Posted on June 17, 2009As part of President Obama's health care package, top Democrats have begun saying that tort reform is on the agenda. In particular, former Senate Majority Leader Tom Daschle told CBS's Early Morning Show that "tort reform is going to be...
Pace Environmental Law Review Announces New Peer Review Process
Posted on June 16, 2009As of August 1, 2009, Pace Environmental Law Review (PELR) will use a new Peer Review process to select articles for publication. Submissions will be reviewed internally and then forwarded to a select group of Peer Reviews - academics, practitioners....
Soda Under FDA Control
Posted on June 16, 2009As the San Francisco Examiner reports, Congress has passed a bill giving the FDA authority to regulate soft drinks. President Obama is expected to sign the legislation. - SBS
Oregon Bill Would Extend Statute of Repose Against Manufacturers
Posted on June 15, 2009An Oregon bill that would extend the state's statute of repose against manufacturers from 8 to 10 years is headed to the governor for signature. StatesmanJournal.com has the details. --CJR
Eggen on Preemption
Posted on June 13, 2009Jean Eggen (Widener) has posted on SSRN The Mature Product Preemption Doctrine: The Unitary Standard and the Paradox of Consumer Protection. Here is the abstract: The history of the U.S. Supreme Court?s product preemption doctrine has been characterized by inconsistency...
Substitute Roundup
Posted on June 12, 2009The Roundup will return next week. In its place, I'll simply offer "things that caught my eye on Bloglines this morning." Ron Miller has an interesting post about Obama's possible acceptance of medical malpractice tort reform at The Maryland Injury...
Corrective Justice, Deterrence, and NIED
Posted on June 11, 2009There is an intriguingly titled note in the upcoming issue of the Alabama Law Review. Brian L. Church's Balancing Corrective Justice and Deterrence: Injury Requirements and the Negligent Infliction of Emotional Distress is at 60 Ala. L. Rev. 697 (2009)...
Statutes of Limitations in Sexual Abuse Lawsuits
Posted on June 11, 2009The WSJ Law Blog has a post about them. --BC
More on the Cowboys' Training Facility Collapse
Posted on June 11, 2009Over a month ago, Sheila posted Michael McCann's column on the collapse of the Dallas Cowboys' training facility. Today there is an AP report that the Cowboys knew of an earlier collapse of a similar structure at the time they...
Chicago U.S. Attorney Threatens to Sue Harper Collins for Defamation
Posted on June 10, 2009The Chicago Sun Times reports that the Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, has threatened to sue publisher Harper Collins for defamation based on statements in the forthcoming book "Triple Cross" by Peter Lance...
Shell Settles Alien Tort Claims Act Suit On Eve of Trial
Posted on June 10, 2009Royal Dutch Shell has agreed to pay $15.5 million to settle the Alien Tort Claims Act case based on its alleged complicity in the 1995 deaths of several Nigerian activists. Jury selection had been scheduled to begin in the Southern...
Senator Kennedy Seen as "Key" To Health Reform Bill
Posted on June 09, 2009According to the Wall Street Journal, President Obama's health reform legislation could take a very different form depending on the health of ailing Senator Ted Kennedy (D-MA): If the liberal Mr. Kennedy takes a lesser role, that could make it...
Two Civ Pro Items of Note to Torts Profs
Posted on June 09, 2009Torts profs (and practitioners) are litigators, too. So, two civil procedure items of note from the U.S. Supreme Court: 1. In Caperton v. A.T. Massey Coal (pdf) (08-22), the Court held that a West Virginia justice's failure to recuse after...
Global Litigation Trends
Posted on June 08, 2009Mark Behrens, Greg Fowler, & Silvia Kim (Shook, Hardy & Bacon) have published Global Litigation Trends in the Michigan State Journal of International Law. The article explores three particular areas where changes are occurring or are under consideration outside of...
Twerski Wins ABA's TIPS McKay Award
Posted on June 07, 2009Congratulations to Aaron Twerski (Brooklyn) for winning the Robert C. McKay Award. The award is given by the ABA's Torts and Insurance Practice Section to an academic for his or her "commitment to the advancement of justice, scholarship and the...
The Decision to Award Punitive Damages: An Empirical Study
Posted on June 06, 2009Theodore Eisenberg, Michael Heise, Nicole Waters, & Martin Wells (all Cornell Lawexcept Waters, who is with the National Center for State Courts) have posted to SSRN The Decision to Award Punitive Damages: An Empirical Study. Here is the abstract: Empirical...
Personal Injury Roundup No. 39 (6/05/09)
Posted on June 05, 2009Happy birthday today to both my Dad (62) and my brother (34). In torts... Reform, Legislation, Policy Ted Frank on the "tort tax" (Overlawyered) GM and Chrysler products liability claims (Day on Torts) (The Pop Tort) New Lawsuits Beaumont, TX...
New Tort Study by the Pacific Research Institute
Posted on June 04, 2009Today at Point of Law, Walter Olson directs his readers to "Tort Law Tally," a new study by the Pacific Research Institute. The executive summary provides the following: Of the 25 tort reforms that we examine, the statistical analysis identifies...
California Supreme Court Hears Arguments in Right of Publicity Case
Posted on June 03, 2009The California Supreme Court hears arguments today in an interesting right of publicity case that pits California's statutory right of publicity - which prohibits the use of likenesses without consent - against the statutory single publication rule, which limits damages...
Two New Suits Filed Over Missouri Sludge
Posted on June 03, 2009On Friday, two new plaintiffs filed suit over the tannery sludge spread on farmland around Cameron, Missouri. Plaintiffs allege that the sludge is connected to the unusual high number of brain tumors in Cameron's small population. About Lawsuits has more...
Bausch & Lomb Settles Eye Cleanser Suits
Posted on June 02, 2009According to the Boston Globe (AP), Bausch & Lomb has settled around 600 lawsuits based on fungal eye infections allegedly caused by its contact lens cleaner. - SBS
Supreme Court Summarily Reverses Fear of Cancer Case
Posted on June 02, 2009In a per curiam opinion(pdf) yesterday, the Supreme Court summarily reversed a $5 million verdict under FELA because the trial court rejected the defendant's proposed jury instruction stating that the jury had to find that the plaintiff's fear of cancer...
Vermont Passes Gift Disclosure Law
Posted on June 01, 2009FDA Law Blog reports that Vermont just passed a new law prohibiting gifts from drug & medical device manufacturers to physicians or health care providers subject to a few exceptions such as samples or clinical trials. Even then, the new...
Congratulations to TortsProf Byron Stier!
Posted on May 30, 2009Congratulations to Byron Stier on his positive tenure vote at Southwestern Law School! In addition to tenure, Byron was also appointed as a rotating endowed chair for the coming academic year. This has been a goal since Byron and I...
Personal Injury Roundup No. 38 (5/29/08)
Posted on May 29, 2009On this day in 1953, Edmund Hillary conquered Mt. Everest. On to this week's news in the world of torts: Reform, Legislation, Policy FDA proposes new direct-to-consumer advertising guidelines. (Life Sciences Legal Update) House bill strengthens FDA's watch over food...
Sharkey on Preemption and Federalism
Posted on May 28, 2009Cathy Sharkey (NYU) has just posted Federalism Accountability: 'Agency-Forcing' Measures on SSRN. Here is the abstract: This Article takes as its starting point the ?agency reference model? for judicial preemption decisions, adopting the foundational premise that courts should take advantage...
LA House Refuses to Extend Med Mal Protections to Nursing Homes
Posted on May 28, 2009The nursing home industry's push to receive state med mal protections (damage caps, panel screening prior to trial) was rejected yesterday by the Louisiana House of Representatives. Nola.com has the details. --CJR
Grady on Unavoidable Accident
Posted on May 28, 2009Mark Grady (UCLA) has published Unavoidable Accident in Bepress's Review of Law & Economics. The abstract provides: In negligence law, ?unavoidable accident? is the risk that remains when an actor has used due care. The counterpart of unavoidable accident is...
Petrin on Directors' and Officers' Tort Liability
Posted on May 27, 2009Martin Petrin (S.J.D. cand. UCLA) has posted a draft of his recent article "The Curious Case of Directors? and Officers? Liability for Supervision and Management: Exploring the Intersection of Corporate and Tort Law" on SSRN. The abstract provides: Directors? and...
The Fight Against Libel Tourism in Britain
Posted on May 26, 2009Sunday's NY Times had an interesting article on libel tourism - plaintiffs with little connection to Britain who bring libel lawsuits against American authors in London courts using Britain's friendlier libel laws. From the article: London has gained a reputation...
Tort Lawyer Websites
Posted on May 26, 2009Eric Turkewitz has an interesting post about the various priorities he attempts to advance in working on his website. While not academic, it's a useful overview of all of the moving parts a practicing tort lawyer has to deal with....
Memorial Day 2009
Posted on May 25, 2009We at TortsProf express our deep gratitude for those who gave their lives so that we could live ours.
OK Gov. Henry Signs Tort Reform Compromise
Posted on May 23, 2009You may recall that, a little over a week ago, I posted on a compromise tort reform bill hammered out in the Oklahoma legislature. There were six main features of the bill: A redefinition of what constitutes a frivolous lawsuit,...
Schwartz Testifies in Favor of Liability for Foreign Corporations
Posted on May 21, 2009Victor Schwartz (Shook, Hardy, & Bacon) testified on Capitol Hill on Tuesday in an effort to close a liability loophole for foreign corporations. "American companies are paying a tort tax," said Schwartz. "[Foreign companies] should have the same liability exposure...
Bill to Partially Overrule Feres Doctrine Approved by House Judiciary Subcommittee
Posted on May 21, 2009On Tuesday, the House Judiciary Subcommittee on Commercial and Administrative Law approved a bill to allow armed services members and their families to sue for negligent medical care. The full House Judiciary Committee is expected to consider the bill by...
Personal Injury Roundup No. 37 (5/22/09)
Posted on May 21, 2009A quick announcement before we get to the Roundup: You'll be seeing some schedule shifts over the next weeks and months. I (Bill) am becoming Western New England's Associate Dean for External Affairs and will be dialing down my posting...
California Supreme Court Decides Important UCL Case
Posted on May 20, 2009The California Supreme Court issued its opinion in In re Tobacco Cases yesterday. As Maura Dolan for the LA Times reports, The case against the tobacco industry, which lower courts had dismissed, charges the industry with luring people to smoke...
Delaware Deaths Not Caused By Heparin
Posted on May 20, 2009As previously noted, the FDA and Baxter International were investigating whether the drug heparin was to blame for two deaths at Beebe Medical Center in Lewes, Del. The Wall Street Journal reports that Baxter has concluded that the deaths were...
Famous Tort Cases Poll
Posted on May 20, 2009Larry Cunningham (GW) is seeking your input over at Concurring Opinion on famous tort opinions penned by Cardozo and Posner. - SBS
Robinette on Early Offers and Apologies
Posted on May 19, 2009Our own Chris Robinette has just published "The Synergy of Early Offers and Medical Explanations/Apologies" in Northwestern Law Review's Colloquy. As the Introduction explains, Medical malpractice law has been subjected to strong criticism by both medical and legal commentators...
Comparative Fault Bill Passes NC House
Posted on May 19, 2009As the Rocky Mountain Telegram (AP)reports, a bill that would change North Carolina to a comparative fault jurisdiction passed the NC House last week. North Carolina is currently a contributory negligence jurisdiction. Under the bill, North Carolina would become a...
Learned Intermediary in NY
Posted on May 18, 2009Beck & Herrmann describe and oppose the bill. Alberto Bernabe (John Marshall) responds and supports it. --BC
Fraudulent Asbestos Removal
Posted on May 18, 2009Via Point of Law, a stunning Boston Globe story about an diploma mill for asbestos abatement and the resultant risks. --BC
The Enduring Relevance of Palsgraf
Posted on May 16, 2009Thanks to John Day for reminding us that spending time covering the classics is not only fun, but also practical. --CJR
Personal Injury Roundup No. 36 (5/15/09)
Posted on May 15, 2009It's graduation weekend at many schools. Best wishes to all law grads! Reform, Legislation, Policy John Day on a doctor-owned med mal insurer's surgical checklist (Day on Torts) Hearings on the Medical Device Safety Act of 2009 (Drug and Device...
Torts Texts
Posted on May 14, 2009Legal publishers are experimenting with a new "Looseleaf" format. The text will be printed, but not bound. Students will be able to purchase a binder to insert the pages of the text. I'm excited about this for two reasons. First,...
OK Tort Reform Compromise Forged
Posted on May 14, 2009Republicans in the Oklahoma legislature reached out to trial lawyers and patient advocacy groups to forge a tort-reform compromise that the governor will likely sign. The major features of the bill: A redefinition of what constitutes a frivolous lawsuit, combined...
A Tax on Your Soda? Senate Holds Hearing on ?Financing Comprehensive Health Care Reform?
Posted on May 13, 2009Yesterday, the Senate Finance Committee held a hearing on ?Financing Comprehensive Health Care Reform.? Over a dozen experts provided ideas about how to pay for the comprehensive health reform proposed by President Obama. As the Wall Street Journal reports, one...
FDA Investigating Heparin Deaths in Delaware
Posted on May 13, 2009The FDA and Baxter International are investigating two deaths at Beebe Medical Center in Lewes, Del. Both patients were taking heparin, a widely used blood thinner made by Baxter. Both the WSJ and the Seattle Times (AP) have more. -...
Supreme Court Nomination & Tort Law
Posted on May 13, 2009Over the coming weeks, we will no doubt hear a lot about the imminent Supreme Court vacancy, and some of those discussions will presumably relate to tort law. Today, a couple of links, with no representation that they're representative: Eric...
Trial Law Report - Tennessee Tort Law Edition - Free!
Posted on May 12, 2009John Day is offering a free copy of the May 2009 edition of Trial Law Report - Tennessee Tort Law Edition. As Day explains, Trial Law Report summaries every tort, civil procedure, evidence and trial law opinion released by the...
"Is it becoming more dangerous to eat?"
Posted on May 12, 2009So asks Andrew Martin and Gardiner Harris in Sunday's NY Times. - SBS
Colburn on Sunstein Appointment
Posted on May 11, 2009My former colleague Jamie Colburn, now at Penn State, has a post up at Dorf on Law about Cass Sunstein's nomination to head the Office of Information and Regulatory Affairs. Worth a read. --BC
Tennessee Considers Increasing Cap on Punitive Damages in Nursing Home Suits
Posted on May 11, 2009Nashville Scene has some details (with a definite perspective, suggested by the "Kill Old People Cheat" part of its headline). --BC
Leg Amputation Verdict: $27.5M
Posted on May 09, 2009John Hochfelder at New York Injury Cases Blog has an analysis here. --CJR
Personal Injury Roundup No. 35 (5/8/09)
Posted on May 08, 2009Happy Mother's Day to all moms! Here's what happened this week in torts: Reform, Legislation, Policy Dr. Margaret Hamburg sailed through her confirmation hearing as FDA head on Thursday. (NY Times, WaPo) President Obama seeks 19% increase in FDA budget...
Causation Missing in IL "Dead Person at the Foot of the Stairs" Case
Posted on May 07, 2009A causation example many of us use in class is finding a dead person at the foot of a set of stairs. How are we to know whether a defect in the stairs caused the fall? The First Appellate District...
Geistfeld on L&E and Products Liability
Posted on May 07, 2009Mark Geistfeld (NYU) has posted Products Liability to SSRN. Here is the abstract: This chapter for the Encyclopedia of Law and Economics (2d ed. forthcoming) provides a survey of the economic analysis of the law governing liability for defective products,...
Torts and the Collapse of the Dallas Cowboys' Training Facility
Posted on May 05, 2009In his Sports Illustrated column this week, Michael McCann (Vermont) analyzes who could be held responsible for the collapse of the Dallas Cowboys' training facility last week. McCann considers negligence suits against the Cowboys as well as against the practice...
Ed McMahon Settles Med-Mal Suit
Posted on May 05, 2009Ed McMahon has settled his medical malpractice suit against Cedars-Sinai Medical Center in LA. Still pending, however, is his suit against the billinoaire homeowner where he fell and was injured. - SBS
3M Water Pollution Trial Starts Today
Posted on May 04, 2009What's left of the suit against 3M for groundwater pollution starts today. The path the lawsuit has followed is pretty interesting and worth a read. --BC
Suit Against Foxy Brown Dismissed
Posted on May 04, 2009The singer was never served with the suit, evidently, and so the NY Post reports that the civil suit against the singer (for allegedly battering a neighbor with her Blackberry) has been dismissed. --BC
More on the Arkansas Ruling
Posted on May 04, 2009The Arkansas Democrat-Gazette has some more about that state's Supreme Court striking down part of its liability reform (mentioned in last week's roundup), including the governor's criticism of the opinion, perhaps undercut a bit by his acknowledgment that he hasn't...
Two Torts-Related Recommendations from Solum
Posted on May 02, 2009Over at Legal Theory Blog, Larry Solum (Illinois) has recommended two pieces of torts scholarship. First, Theodore Eisenberg, Michael Heise, and Martin Wells (all Cornell) have the "Download of the Week" in Variability in Punitive Damages: An Empirical Assessment of...
Personal Injury Roundup No. 34 (5/1/09)
Posted on May 01, 2009I've got a couple more days until the exams roll in for grading, so I'm off to Brooklyn for the weekend. Here's a look at some of what happened this week in tort law. Reform, Legislation, Policy CEO of Universal...
"Prosser on Torts" in Pop Culture
Posted on April 30, 2009And now for something completely different. The end of classes finds me in a somewhat mellow mood, focusing on the lighter side of torts. In that vein, I'm curious about the number of references to Prosser on Torts in pop...
Geistfeld on the Compatibility of Rights-Based and Efficiency-Based Theories of Tort
Posted on April 30, 2009Mark Geistfeld (NYU) has posted on SSRN Efficiency, Fairness, and the Economic Analysis of Tort Law. Here is the abstract: Throughout its history, the economic analysis of tort law has been largely limited to one question: How should tort rules...
Andrew Speaker Sues CDC for Tuberculosis Attention
Posted on April 30, 2009Andrew Speaker, an Atlanta lawyer, has sued the CDC for privacy-related torts arising from the attention he received back in 2007 when the CDC publicized his international travel with what the CDC asserted was a dangerous form of TB. He...
Charleston Law Review Cited by Justice Thomas
Posted on April 29, 2009Admittedly, this is not Torts-related, but I am so proud of my students that I ask your indulgence this one time. In yesterday's ruling in FCC v. Fox Television Stations, et al., Justice Thomas cited an article in the Charleston...
Behrens on "What's New In Asbestos Litigation?"
Posted on April 29, 2009Mark Behrens (SHB) has a new article coming out this week in the Texas Review of Litigation, "What's New in Asbestos Litigation?" published at 28 Rev. Litig. 500 (2009). Download What's New in Asbestos Litigation (pdf). The abstract provides: Asbestos...
The FDA at 100 Days
Posted on April 28, 2009MSNBC reports on the expected overhaul of the FDA by President Obama including the possibility of merging the USDA with the FDA. - SBS
Sen. Specter Proposes "Cures Administration Network"
Posted on April 28, 2009Reuters reports that Sentator Arlen Specter (R-PA) is proposing the curiously named "Cures Administration Network," a new federal agency that would award grants to bio-tech companies. - SBS
Myths of Consumer Protection Law
Posted on April 27, 2009Via Point of Law, the University of Chicago School of Law's Coase Lecture. The intro from the blog post: Professor Omri Ben-Shahar spoke on the "Myths of Consumer Protection" at this year?s annual Ronald H. Coase lecture for first year...
Blawg Review #209 Up
Posted on April 27, 2009Hosted this week by the NY Injury Cases Blog, it has a bit of a torts focus. --BC
OK: Tie Vote Stalls Attorney's Fee Cap
Posted on April 25, 2009A bill to limit attorney's fees to 33% of the first million dollars and 20% of amounts over $1 million stalled in the Oklahoma Senate with a tie vote. NewsOK has the details. --CJR
Personal Injury Roundup No. 33 (4/24/09)
Posted on April 24, 2009As the semester winds down, tort law rolls on... Reform, Legislation, Policy Nevada Supreme Court, citing a large backlog, arranges for retired judges to help settle med mal cases. (Las Vegas Business Press) Provisions of a Colorado bill that would...
PA Governor: Med Mal Stabilized
Posted on April 24, 2009On Thursday, PA Governor Ed Rendell cited statistics that med mal cases have declined 41% since early in the decade, and claimed that the changes are attributable to legal reforms. In 2002, PA instituted venue restrictions and required a certificate....
Hylton on Intent in Tort Law
Posted on April 23, 2009Keith Hylton (Boston) has posted on SSRN Intent in Tort Law. Here is the abstract: This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of...
Brownstein on the Ramifications of Heller for Self-Defense
Posted on April 23, 2009Alan Brownstein (UC Davis) has posted to SSRN The Constitutionalization of Self-Defense in Tort and Criminal Law, Grammatically Correct Originalism, and Other Second Amendment Musings. Here is the abstract: This article considers several issues raised by the Supreme Court?s opinion...
In Texas, No Health Care Savings (Yet?) From Caps
Posted on April 22, 2009Dallas Morning News columnist Jim Landers takes a look at the impact of caps on medical malpractice awards in Texas, concluding that (based on varioust data), at least as yet, the reduced malpractice insurance rates have not translated into lower...
Health Reform or Climate Change?
Posted on April 22, 2009Congress returned from its recess on Monday and has to decide whether to prioritize health care reform or climate change. The Wall Street Journal reports that Congressional Democrats are leaning towards health care reform. Reed Smith's Health Industry Washington Watch...
Civil Lawsuit Against Army Corps of Engineers Over Katrina Destruction Began Yesterday
Posted on April 21, 2009As the New York Times reports, the Katrina lawsuit against the Army Corps of Engineers began yesterday in the United States District Court for the Eastern District of Louisiana. Judge Stanwood R. Duval is hearing the case without a jury....
Food Safety - Thank Goodness for Minnesota
Posted on April 21, 2009Yesterday, the New York Times had an interesting article on how states handle food safety reports. Thankfully for the rest of us, Minnesota is a very diligent state, "safeguarding not only Minnesotans but much of the rest of the country,...
Suit Alleges Collusion Between Plaintiffs' Lawyers, Diocese in Abuse Settlements
Posted on April 20, 2009The Diocese of Charleston denies the allegations, which were made in a suit filed earlier this year. The suit was originally filed directly in the South Carolina Supreme Court, which refused to hear it under its original jurisdiction, and so...
More on Iraq v. Beaty
Posted on April 20, 2009I posted over the weekend about the Supreme Court hearing argument today in the case of Iraq v. Beaty, addressing whether U.S. courts have jurisdiction over tort suits against Iraq for alleged torts during Saddam Hussein's reign. The SCOTUSBlog has...
Supreme Court to Hear Argument on Suit Against Iraq
Posted on April 19, 2009Tomorrow the Supreme Court will hear argument in Iraq v. Beaty, a case addressing the U.S. courts' jurisdiction over claims against Iraq for liability claims for actions that took place during Saddam Hussein's reign. The case has consolidated a number...
Helland & Klick on Regulation by Litigation
Posted on April 18, 2009Eric Helland (Claremont McKenna College/RAND) and Jonathan Klick (Penn) have posted on SSRN The Relation Between Regulation and Class Actions: Evidence from the Insurance Industry. Here is the abstract: Standard law and economics models imply that regulation and litigation serve...
Personal Injury Roundup No. 32 (4/17/09)
Posted on April 17, 2009Here's the past week in Torts: Reform, Legislation, Policy Bill creating market-share liability for lead paint in Baltimore fails to pass Maryland General Assembly. (Law & More, Point of Law) Point: Texas Med-Mal Damages Caps Worked. (Point of Law) Counterpoint:...
More Bizarre Warnings
Posted on April 16, 2009Fox News has an article on odd warnings found on products. For example, on the iPod Shuffle: "Do Not Eat iPod Shuffle." The article, with more tasty examples, is here. --CJR
Top 10 Recent Torts & Products Liability SSRN Downloads
Posted on April 16, 2009Among papers posted in the last 60 days, the top 10 papers for the SSRN Torts & Products Liability e-Journal are: 1. Estimating the Effect of Damages Caps in Medical Malpractice Cases: Evidence from Texas David A. Hyman , Bernard...
Cal Biz Lit Live-Blogging DRI Products Conference
Posted on April 16, 2009Follow it here. (Via Point of Law.) --BC
Bridge Settlement Complete in Minnesota
Posted on April 16, 2009Some details of the settlement are at KSTP.com; all settlements come from a $37 million fund set up by the Minnesota legislature. --BC
Vladeck to Head FTC's Consumer Protection Bureau
Posted on April 15, 2009David Vladeck (Georgetown) has been named Director of the Bureau of Consumer Protection at the FTC. FDA Law Blog and CL&P Blog have more. - SBS
Pace Law Review Call for Papers: National Security Law and Con Law
Posted on April 14, 2009Call for Articles, Essays, and Book Reviews: National Security and Constitutional Law Proposals due May 15, 2009 The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to a special issue on the relationship...
LA Times on Punitives
Posted on April 13, 2009In an editorial, the LAT calls on the Supreme Court to give better guidance on punitive damages, saying the state of law today has "wasted the time of lawyers, judges and injured parties, and sometimes has led to injustices." --BC
Nevada Panel Approves Unlimited P&S Damages for Victims of Gross Negligence
Posted on April 12, 2009On Friday, Nevada's Assembly Judiciary Committee approved a bill that allows victims of gross negligence to sue for unlimited pain and suffering damages. The bill now goes to the floor of the assembly. The Las Vegas Sun has the story....
Personal Injury Roundup No. 31 (4/10/09)
Posted on April 10, 2009Spring has sprung, more or less, in New England (though there were some snowflakes on Wednesday). Those of you in places where it's been definitively spring for longer can just sit on your hands and refrain from making fun. Reform,...
Solum's Primer on the Reasonable Person
Posted on April 09, 2009In this week's Legal Theory Lexicon, Larry Solum covered the "reasonable person." For his analysis and a bibliography, click here. --CJR
Another "Douchebag" Defamation Lawsuit Dismissed
Posted on April 09, 2009A book, tastefully entitled "Hot Chicks with Douchebags," featured, well, pictures of what the authors deemed to fit that description. Not surprisingly, people identified as the latter took offense; at least two have sued for libel. The Smoking Gun (who...
Hylton to Deliver Monsanto Lecture
Posted on April 09, 2009Keith Hylton (Boston) will deliver the 23rd annual Monsanto Lecture at Valparaiso on April 23rd at 4:00 p.m. His topic is "Intent in Tort Law." Past speakers have included Ken Abraham, Anita Bernstein, Jules Coleman, Richard Epstein, John Goldberg, George...
Oregon Houses Passes Increase on State Liability Caps
Posted on April 08, 2009As Bend Weekly News reports, the Oregon House passed SB 311, which would raise the current liability cap of $200,000 for government agency defendants. The new bill raises the cap and sets up a two-tier system depending on whether the...
Thanks to Mike Green & the Wake Forest Law Review
Posted on April 07, 2009As readers know, Chris and I attended the Torts Symposium co-hosted by Wake Forest, ALI and Texas last week. The event was held at Wake Forest School of Law in Winston-Salem, NC. Mike Green was an exceptional host, and the...
Duty: How Would A Pluralist Approach Really Work?
Posted on April 07, 2009During the panel on Duty at the ALI Conference on the Restatement (Third) of Torts last week, several commentators and audience members questioned how courts would weigh the competing values (economic factors and corrective justice factors) under a pluralist view...
Supreme Court Not Likely to do Much on Punitives
Posted on April 06, 2009So says (accurately) this Legal News Line piece, noting as a harbinger the recent withdrawal of cert. in the Williams case. Even with the Baker case providing a 1:1 hard ratio in maritime law, I think it's right to say...
Turley on Defective Sperm as Products Case
Posted on April 06, 2009Interesting post on the notion of defective sperm as giving rise to a tort or products liability suit. --BC
WNEC Victory at the Rendigs Products Liability Moot Court Competition
Posted on April 05, 2009I am pleased and proud to announce that the Western New England College School of Law team (which I coach) won the national championship in the Rendigs Products Liability Moot Court Competition, hosted by the University of Cincinnati School of...
Beyond Negligence: Intentional and Strict Liability in the Third Restatement
Posted on April 04, 2009The second panel yesterday covered two topics: "Beyond Negligence: Intentional and Strict Liability Torts and An Integrated Third Restatement." Ellen Bublick (Arizona), Ellen Pryor (SMU) and Ken Simons (BU) presented. The panel was moderated by ALI Deputy Director Elena Cappella...
Land Possessor Liability in Restatement Third
Posted on April 04, 2009Yesterday's final panel of a fantastic conference included Keith Hylton (Boston), James Henderson (Cornell), and Stephen Sugarman (Berkeley). The panel was moderated by Simone Rose (Wake Forest). Prior to the discussion, Mike Green noted that land possessor liability was the...
Risk Creation and Foreseeability in Restatement Third
Posted on April 03, 2009Friday's opening panel included John C.P. Goldberg (Harvard), Ben Zipursky(Fordham), David Owen (South Carolina), and Jane Stapleton (Texas). Ralph Peeples (Wake Forest) served as moderator. Goldberg presented an article he co-authored with Zipursky, Intervening Wrongdoing in Tort: The Third Restatement's...
Duty in the Third Restatement
Posted on April 02, 2009The Wake Forest Symposium on the Third Restatement opened today with a panel on "Duty in the Third Restatement." Jonathan Cardi (Kentucky), Mark Geistfeld (NYU), and Victor Schwartz (Shook Hardy) presented. The panel was moderated by Margaret Taylor (Wake Forest)...
NIED in the Third Restatement
Posted on April 02, 2009Thursday's second panel covered Negligent Infliction of Emotional Distress. Presenting were Martha Chamallas (Ohio State), Greg Keating(USC), Martin Matthews (Oxford), and Robert Rabin (Stanford). The panel was moderated by David Levi (Duke). 1. Rabin discussed Emotional Distress in Tort Law:...
Negligence in the Third Restatement
Posted on April 02, 2009The third panel on Thursday covered the vast topic of negligence. Kenneth Abraham (Virginia), Ariel Porat(Tel Aviv/Chicago), and Aaron Twerski (Brooklyn) presented. The panel was moderated by Lance Liebman (Columbia/Director, ALI). Abraham discussed his article Custom, Non-Customary Practice, and Negligence...
Causation in the Third Restatement
Posted on April 02, 2009In the final panel of today, David Robertson (Texas) and Joe Sanders (Houston) discussed Causation in the Third Restatement. The panel was moderated by Wendy Parker (Wake Forest). Don Cowan (Ellis & Winters) and Steve Gold (Rutgers) provided commentary...
Torts Prof Phoebe Haddon Named Dean At Maryland
Posted on April 01, 2009Phoebe Haddon, a professor at Temple University Beasley School of Law, has been named Dean at the University of Maryland School of Law. Haddon joined the Temple faculty in 1981, and taught torts, products liability, constitutional law, and a seminar....
Torts Profs at the Torts Symposium
Posted on March 31, 2009Chris and I will be attending the Symposium on the Restatement Third of Torts at Wake Forest this Thursday and Friday. Unfortunately, Bill can't join us because he is coaching WNEC's team for the National Products Liability Moot Court Competition...
Texas Senate Passes Bill Requiring Continued Insurance Coverage for Study Participants
Posted on March 31, 2009According to the bill history, the Texas Senate passed SB 39 (pdf) last Monday. The bill would require insurance companies to cover routine medical care for insureds enrolled in clinical trials. Two companion bills (HB 390 and HB 2005) are...
Williams v. Philip Morris Cert. Grant Withdrawn as Improvidently Granted
Posted on March 31, 2009Per curiam opinion here, some analysis here. --BC
Orlando Sentinel on Theme Park Lawsuits
Posted on March 30, 2009The Orlando paper published an interesting overview of litigation against Florida theme parks, focusing on the fact that all of the ride-related cases settle (which is nothing new, nor is it limited to Florida) and the relative lack of information...
Oklahoma Debate on Tort Reform
Posted on March 30, 2009Interesting, if a bit anecdote-heavy, story here. --BC
A View from Abroad
Posted on March 28, 2009New Zealand famously abolished tort actions for personal injuries and set up a comprehensive no-fault compensation plan. Australia seriously considered a similar plan, but never adopted it. Harold Luntz (University of Melbourne) has written an article comparing how personal injuries...
Personal Injury Roundup No. 30 (3/27/09)
Posted on March 27, 2009Reform, Legislation, Policy In 2006, the UK passed a compensation act that included a provision to allow defendants to make apologies. Prue E. Vines (University of New South Wales) writes about its effects in a new article. (Via Solum/Legal Theory...
Simons on the Restatement (Third) and Strict Liability
Posted on March 26, 2009Ken Simons (Boston) has posted to SSRN The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines. Simons will present the paper next week at the Wake Forest Conference on the Restatement (Third) of Torts. Here is...
Punitives Considered in Clerical Abuse Case
Posted on March 26, 2009In a case where the punitive damages were over $7 million, the Church contends that the court improperly instructed the jury, permitting an award of punitive damages without a finding of bad motive. Details are here. --BC
DC Circuit Upholds Negligence Verdict Against Allen Iverson
Posted on March 25, 2009In an unanimous opinion (pdf), the U.S. Court of Appeals for the D.C. Circuit has affirmed a judgment against NBA guard Allen Iverson for negligent supervision of his body guards involved in a nightclub brawl. BLT has more on the...
Burch on Litigating Groups
Posted on March 25, 2009Elizabeth Chamblee Burch (Florida State) has posted "Litigating Groups" on SSRN. The abstract provides: Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group...
Med Mal Reform Moves Forward in Hawaii
Posted on March 24, 2009As Pacific Business News reports, House Bill 1784 is moving forward in the Hawaiian legislature: HB 1784 limits noneconomic damages to $250,000 in medical malpractice claims against certain specialists who practice in areas such as emergency medicine, neurological surgery, obstetrics...
More on North Carolina v. TVA - Public Nuisance
Posted on March 24, 2009Last week, I mentioned the article by Trent Taylor on State of North Carolina v. TVA, which held that air emissions from coal-fired power plants operated by the TVA were a public nuisance. Now, Jane Genova at Law & More...
Eggen & Culhane on Gun Torts
Posted on March 23, 2009Jean Eggen & John Culhane (Widener) have posted on SSRN Gun Torts: Defining a Cause of Action for Victims in Suits Against Gun Manufacturers. Here is the abstract: Although tens of thousands of Americans die from gun violence every year,...
Kador on Effective Apologies
Posted on March 23, 2009As a follow-up to last week's apology posts, John Kador is publishing a new book on May 1st that focuses on apologies in the corporate setting. He concludes that apologies are not without cost, but they are almost always less...
Civil Trial Starts in Playland Death
Posted on March 21, 2009Four years ago, a boy died on a gentle boat ride at Rye's Playland Amusement Park. The "Old Mill" ride's boats float through tunnels and past simple scenes. The boy, Jon-Kely Cassara, apparently became scared and left his boat, getting...
Oberdiek on Philosophy and Tort Law
Posted on March 21, 2009John Oberdiek (Rutgers-Camden) has posted on SSRN Philosophical Issues in Tort Law. Here is the abstract: The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly...
Personal Injury Roundup No. 29 (3/20/09)
Posted on March 20, 2009Happy first day of Spring! Here's what happened in the world of torts in the last week of winter: Reform, Legislation, Policy Obama names Dr. Margaret Hamburger, former NYC Health Commissioner, as head of FDA. (NY Newsday, Atlanta Journal Constitution,...
Apologies and Tort Law
Posted on March 19, 2009My state senator, Pat Vance, has proposed a bill that would make Pennsylvania the 36th state to provide some sort of apology immunity. (The Scranton Times has the details. SorryWorks! has a list of states with apology immunity laws here.)...
Apology Bibliography
Posted on March 19, 2009I discussed the parameters of the academic debate over apology immunity laws in this post. For those of you interested in delving into the literature, I offer this bibliography. Books Aaron Lazare, On Apology (2004) Nicholas Tavuchis, Mea Culpa: A...
Sebok on Wyeth v. Levine
Posted on March 18, 2009In his latest FindLaw column, Tony Sebok analyzes the Supreme Court's recent decision in Wyeth v. Levine. Sebok submits that: After Levine, Big Pharma is faced with a choice. If it can convince the Supreme Court to adopt the background...
"A New Era of Public Nuisance Law?"
Posted on March 18, 2009Trent Taylor, a partner with McGuire Woods, has published "State of North Carolina v. TVA - A New Era In Public Nuisance Law?" (pdf) in the BNA Toxics Law Reporter. In the article, Taylor discusses a January 2009 decision out...
Nominations for AALS Prosser Award
Posted on March 18, 2009The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award. The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ...
Ohio Inspectors Liable in Electrocution Death at County Fair
Posted on March 18, 2009A judge has determined (a mere two years after the trial) that the state amusement ride inspectors in Ohio were negligent and are liable for the death of young Greyson Yoe, who was electrocuted while standing in line for bumper...
Obama Names New Head of FDA
Posted on March 17, 2009President Obama has named Dr. Margaret A. Hamburg as the new FDA Commissioner. Dr. Hamburg is the former health commissioner for New York City. Obama also named Baltimore Health Commissioner Dr. Joshua Sharfstein as Deputy Commissioner. Washington Post and Reuters...
Food & Drug Law Annual Conference -Update
Posted on March 17, 2009As I previously mentioned, the Food & Drug Law Institute's Annual Conference will be held April 22-23rd in Washington, DC. The FDLI has released the agenda for the conference. Topics include "What is Safety?", a plenary panel on preemption, a...
Professor William Rubenstein Joins Mass Torts Profs
Posted on March 16, 2009Professor William Rubenstein (Harvard) has joined the gang over at Mass Torts Profs. - SBS
Hylton on Duty in Premises Liability
Posted on March 14, 2009Keith Hylton (Boston) has posted on SSRN Tort Duties of Landowners: A Positive Theory. Here is the abstract: One of the most controversial areas of modern tort law is that of the duty of landowners toward people who visit their...
Personal Injury Roundup No. 28 (3/13/09)
Posted on March 13, 2009Last week was Chris's spring break edition of the Roundup. This week it's mine; I am, depending on when you read this, either en route or at South by Southwest in Austin, Texas. Any central Texas readers who want to...
Loser-Pays Loses in Georgia
Posted on March 12, 2009A bill introduced on behalf of Georgia Governor Sonny Perdue would have created a loser-pays system for cases dismissed at the earliest possible stage. However, that portion of the bill was removed as the Georgia Senate unanimously passed a bill...
King on Parody and Defamation
Posted on March 12, 2009Joseph King (Tennessee) has added to his body of defamation work with Defamation Claims Based on Parody and Other Fanciful Communications Not Intended to Be Understood as Fact, 2008 Utah L. Rev. 875. Whether parodies are actionable as defamation depends...
A Modern Statute on Alienation of Affections/Criminal Conversation
Posted on March 11, 2009Maggie Gallagher provides this statute (drafted for Minnesota) at National Review Online. I offered my view on the heart-balm torts in this post. --CJR
Burris to Direct Public Health Law Research
Posted on March 11, 2009Temple Law TortsProf Scott Burris will direct a new $19 million program focusing on the intersection of law and public health:Temple University 's Beasley School of Law has been selected by the Robert Wood Johnson Foundation to manage a new...
British Sisters Sue Thomas Cook After Egyptian "Holiday Nightmare"
Posted on March 10, 2009There's a torts exam in here somewhere:Two sisters who were struck down with an acute gastric bug on a holiday in Egypt are taking legal action against tour operator Thomas Cook. Diane Harris and her sister Wendy Greenwood, from Batley,...
New Zealand Law Commission Paper on Privacy
Posted on March 10, 2009The New Zealand Law Commission has released a 300 page "paper on privacy." Some of the issues being debated include: Is there a value in a tort of invasion of privacy by publicity given to private facts? If so, should...
Congress Considering Reversing Device Preemption
Posted on March 09, 2009In the wake of the Levine case, Congress is now considering legislation that would reverse Riegel v. Medtronic and eliminate preemption for medical device tort lawsuits. Some views: Nan Aron (Alliance for Justice), Beck & Herrmann (Drug & Device Law....
Drug Effect Compensation Fund Proposed
Posted on March 09, 2009Coverage of the program, modeled on the vaccine compensation fund, are in this story; the actual proposal is here. --BC
Loss in Lawsuit for Errant Basketball
Posted on March 08, 2009In August 2007, a couple visited a pier-based amusement park in Ocean City, which included a basketball game among its prize-based attractions. A shot bounced off and, in what the husband called in deposition testimony a "one-in-a-million shot," the ball...
NJ Jury Awards $11M in Oral Surgery Med Mal Case
Posted on March 08, 2009On Friday, a jury in New Brunswick, NJ awarded $11 million in damages to the family of a man who died 12 hours after having his teeth removed:The jury deliberated less than three hours over two days before finding that...
Green on Asbestos Apportionment
Posted on March 07, 2009Michael Green (Wake Forest) has posted on SSRN Second Thoughts on Asbestos Apportionment. Here is the abstract:Ordinary principles of apportionment of liability among multiple parties calls for first determining which parties caused which portions of the harm suffered by the...
Recent Pain-and-Suffering Awards
Posted on February 26, 2009New York Personal Injury Cases Blog is providing us with some recent pain-and-suffering data points: Leg Fracture Verdicts for Pain and Suffering in New York Injury Cases Upheld on Appeal for $1,100,000 and $1,500,000 Leg Amputated After Drunk College Student...
New Jersey Med Mal Case Begins Against Dentist, Oral Surgeon
Posted on February 26, 2009Opening statements were made yesterday in the New Brunswick, NJ med mal trial of a dentist and oral surgeon. A 21-year-old man died in August 2005 the day after his wisdom teeth were pulled when his larynx swelled and blocked...
Tort Reform Bill Moves to House Floor in Oklahoma
Posted on February 25, 2009H.B. 1603 passed the Oklahoma House Judiciary Committee and now moves to the full House. The bill would "cap non-economic damages; require an expert witness for pre-certification of a lawsuit; and eliminate joint and several liability, among other reforms...
Oregon Senate Passes Increase on State Liability Caps
Posted on February 24, 2009On Monday, the Oregon Senate passed a bill that would substantially increase public liability tort limits. Currently, liability against a government agency is capped at $200,000. The new bill raises the cap and sets up a two-tier system depending on....
White House Summit on Health Reform
Posted on February 24, 2009Jeffrey Young at the Hill reports that President Obama has scheduled a health reform summit for next week:"Everybody here understands a lot of the tradeoffs involved in health care and that there are no perfect solutions, but in the sound-bite...
Grace Case Being Live Blogged
Posted on February 24, 2009The University of Montana's law and journalism schools are blogging the criminal case involving W.R. Grace and the harms in Libby, Montana. Past posts about Libby and WR Grace, mostly by guest blogger Andrea Peacock, are here. --BC
Tort Law & Immigration
Posted on February 23, 2009A jury recently awarded about $80,000 to a group of undocumented workers who sued an Arizona rancher for a variety of claims. Their conspiracy and civil rights claims were dismissed by the judge; they prevailed on assault and intentional infliction...
Tennessee Begins Amusement Ride Oversight
Posted on February 23, 2009A few years ago, a woman died after falling from an amusement ride on which the owner had allegedly bypassed the safety devices. Specifically, he had overridden the microswitches that prevented the ride from operating if the restraints were not...
The Globalization of Class Actions
Posted on February 21, 2009The upcoming March 2009 issue of The Annals of the American Academy of Political and Social Science is dedicated to a symposium covering class actions in about two dozen countries. The articles were submitted by leading scholars in each country....
Personal Injury Roundup No. 25 (2/20/09)
Posted on February 20, 2009I am considering suing the snow if it returns. Is spring coming? Is snow judgment-proof? Anyway: This week in torts... Reform, Legislation, Policy Eric Turkewitz, as usual, is the go-to source for information about sketchy client solicitation after the Buffalo...
What Drives the Passage of Damage Caps?
Posted on February 19, 2009This is the question addressed by Jonathan Klick (Penn) and Cathy Sharkey (NYU Law) in their SSRN posting of the same name. Here is the abstract:A number of states have passed caps on non-economic and punitive damage awards in civil...
Negligent Spotting?
Posted on February 19, 2009The family of a boy whose finger was crushed in a weightlifting accident at a high school in Virginia has sued the gym teacher. The Roanoke Times has the story, via VLW Blog. --CJR
Second Circuit Upholds NYC's Fast Food Menu Rule
Posted on February 18, 2009In a ruling yesterday, the United States Court of Appeals for the Second Circuit upheld the New York City rule requiring chain restaurants to list calorie information on menus. The New York State Restaurant Association had challenged the regulation on...
Hess Lawyers Seek $130M+ in Tobacco Case
Posted on February 18, 2009The AP has details; $100M of the amount sought is punitive damages. The jury found causation in an earlier phase of the trial, and the since-decertified class action established in Florida that the tobacco companies hid risks of smoking. --BC
$8M in Hess v. Philip Morris
Posted on February 18, 2009USA Today has the story; Philip Morris will appeal (press release), focusing on the use of the findings from the Engle class before it was decertified. --BC
Federal Money for "Comparative Effectiveness" Studies
Posted on February 17, 2009The New York Times reports that the stimulus bill includes $1.1 billion to fund "comparative effectiveness" research, i.e., comparing the effectiveness of different treatments for the same condition or illness. Dr. Elliott S. Fisher of Dartmouth Medical School said the...
Food & Drug Law Annual Conference
Posted on February 17, 2009Titled "Opportunities and Challenges Facing FDA & the New Administration," the Food & Drug Law Institutes's Annual Conference will focus on changes under President Obama's new administration. The conference is scheduled for April 22-23rd, 2009. An agenda and speaker list...
Delaying DTC Advertising
Posted on February 16, 2009The defense-side Drug & Device Law Blog has some thoughts; even if you disagree with the conclusions, they seem to identify the issues in play accurately. --BC
Culhane on Marriage, Tort, and Private Ordering
Posted on February 15, 2009John Culhane (Widener) has posted Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights on SSRN. Here is the abstract:This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury...
Conference: Restatement (Third) of Torts: Physical and Emotional Harm
Posted on February 14, 2009Wake Forest University School of Law, the University of Texas School of Law, and the American Law Institute are sponsoring a Symposium on April 2-3 in Winston-Salem, North Carolina to discuss the upcoming Restatement (Third) of Torts: Physical and Emotional...
Personal Injury Roundup No. 24 (2/13/09)
Posted on February 13, 2009In the week my son turned 4, the world of torts kept moving... Reform, Legislation, Policy Roderick Hills and Cathy Sharkey on preemption (Stier/Mass Torts Prof) Georgia judge strikes down med mal caps (Olson/Point of Law) Albany Law School symposium...
RICO Suit Brought Against Asbestos Screeners, Others
Posted on February 13, 2009LegalNewsLine has details of the claims against a radiologist and others who, the complaint alleges, "have schemed to generate false medical test results, false medical reports and false diagnoses to substantiate tens of thousands of personal injury cases filed against...
Stapleton on Causation
Posted on February 12, 2009Jane Stapleton (Australian National University College of Law/Texas) has posted Choosing What We Mean by "Causation" in the Law on SSRN. In the article, Stapleton offers a "radical new account of 'causation' in the law," and contrasts her account with...
Abraham on Custom
Posted on February 12, 2009Kenneth Abraham (Virginia) has posted Custom, Non-Customary Practice, and Negligence on SSRN. Here's the abstract:The rule that evidence of compliance with or departure from custom is admissible to prove negligence implements the idea that recurring patterns of conduct have a...
Court of Federal Claims Rejects Autism-Vaccine Claims
Posted on February 12, 2009Point of Law reports that the Court of Claims rejected the claim that the claimants' autism was caused by the MMR vaccine's thimerosol. CNN Money has more details, and you can access the decisions at the Court of Claims' website....
Suit Alleges Disney's Tower of Terror Caused Stroke, Heart Attack
Posted on February 12, 2009In an interesting counterpoint to the suit I noted earlier this week seeking more rides on the Twilight Zone: Tower of Terror Ride at Walt Disney World (there the plaintiff contends that the ride is good for her health), a...
Pump Handle on the Wakefield/MMR Stuff
Posted on February 12, 2009An interesting take, focusing on the issue of peer review in the process. --BC
Causation Found in Hess Case
Posted on February 12, 2009The WSJ has the story. The jury found that the plaintiff's lung cancer was caused by his smoking. But there remain both liability (presumably the defect/negligence question) and damages phases of the trial. --BC
Slippery Slope Interview with Kia Franklin
Posted on February 11, 2009Over at the Slippery Slope, Meredith Miller (Touro) has an interview with Kia Franklin, a Senior Fellow in Civil Justice at the Drum Major Institute. The conversation includes DMI's civil justice platform, mandatory arbitration and arguments for a civil right...
A New Site About Online Marketing of Asbestos Lawyers
Posted on February 11, 2009Someone sent me a link this morning to Sleaze-othelioma, a new blog that describes its mission as such:This blog is to provide a factual document regarding the marketing practices of staff involved in promoting mesothelioma sites. This blog is not...
Suit Demands More Rides on Disney's Tower of Terror
Posted on February 11, 2009Denise Mooty says (and has a doctor who agrees) that riding on Disney's Tower of Terror ride relieves the pain of her abdominal adhesions, and she apparently rode the ride more or less constantly in recent years. But then Disney...
Wrongful Death Suit Against Seahawk Manufacturer
Posted on February 10, 2009Families of four Navy crewmen who were killed when their Seahawk helicopter crashed into the Pacific Ocean have filed a wrongful death suit against the helicopter manufacturer as well as the parts manufacturers. NavyTimes has a full report. - SBS
Assault Trial Begins for Former "Sopranos" Star
Posted on February 10, 2009Former "Sopranos" star Vincent Pastore is in trial in New York state court facing a tort suit by his former girlfriend for $5.5 million. She alleges that he assaulted her during an argument; Pastore denies hitting her. More on the...
Goldacre Threatened with Copyright Suit in MMR Flap
Posted on February 09, 2009It's a lengthy and complicated story, but you might find it interesting: here (Goldacre's Bad Science blog, including a gazillion links to more coverage). And, in a bit of an aside, early in the MMR story appears Andrew Wakefield, who...
Zyprexa Class Decision Appeal Certified
Posted on February 09, 2009In a not-very-big surprise, the Second Circuit has agreed to review Judge Weinstein's class certification in the Zyprexa RICO decision. Mass Tort Defense has more. --BC
Peanut Butter: "It Keeps Getting Worse"
Posted on February 09, 2009The Pump Handle has an overview. --BC
First Post-Engle Trial Begins
Posted on February 08, 2009A few years ago, the Florida Supreme Court threw out a $145 billion class verdict against various members of the tobacco industry. Now, as Sheila noted in last week's roundup, the first Florida trial post-Engle has begun; Bloomberg has a...
Soutwestern Law School Asbestos Symposium Articles
Posted on February 07, 2009Sheila mentioned them in the Roundup yesterday, and I want to highlight the Southwestern asbestos symposium articles over at Mass Torts Prof. Alan Calnan and Byron Stier put together a fantastic conference. The articles lineup includes: Mark Behrens & William...
Pain-and-Suffering Awards for Hip and Pelvis Injuries
Posted on February 07, 2009Over at New York Injury Cases Blog, John Hochfelder has an intriguing post demonstrating the variability of pain-and-suffering awards for hip and pelvis injuries. --CJR
Personal Injury Roundup No. 23 (2/6/09)
Posted on February 06, 2009Here's this weeks news from the world of torts... Reform, Legislation, Policy Speculation on who is to be named FDC Chief, leading contenders include Dr. Robert Califf, a Duke University cardiologist, or Dr. Joshua Sharfstein, Baltimore's health commissioner...
Fletcher Comments on Tort Liability for Human Rights Abuses
Posted on February 05, 2009Yesterday's NYT "Room for Debate" column included a section by George Fletcher (Columbia) on the role American law can play in prosecuting war crimes via the Alien Tort Claims Act. --CJR
Gift Cards to Pay Class Action LAWYERS
Posted on February 05, 2009Often class action plaintiffs are paid in gift cards. Is it only fair their lawyers receive the same? So says Los Angeles Superior Court Judge Brett Klein. Via Olson/Overlawyered linking Metropolitan News-Enterprise and California Civil Justice Blog. --CJR
Top 10 Recent Torts & Products Liability SSRN Downloads
Posted on February 04, 2009Among papers posted in the last 60 days, the top 10 papers for the SSRN Torts & Products Liability Journal are: 1. Overreaction to Fearsome Risks Cass R. Sunstein and Richard J. Zeckhauser Harvard University - Harvard Law School and...
DuPont Wins Case, Even After Class Certification and Significant Concessions
Posted on February 04, 2009Details are at the Mass Tort Defense blog, which is (surprise!) a defense-oriented blog about mass torts, authored by an attorney at Dechert. In the case, DuPont acknowledged significant elements for liability and a class was certified, but the defense...
Sebok on Dismissal of 9/11 Property Damage Claims
Posted on February 03, 2009In his latest Findlaw column, Tony Sebok analyzes Judge Hellerstein's decision (pdf) dismissing claims by World Trade Center Properties against American Airlines for damage caused to WTC Tower Two. Remember, American's Flight 11 crashed into WTC Tower One, not Tower...
Pro and Con on Proposed Georgia Tort Reform
Posted on February 03, 2009Yesterday, the Atlanta Journal Constitution ran two op-eds on Georgia Governor Sonny Perdue's proposal to impose a loser-pays rule and limit liability for drug companies (prior posts here and here). In the "pro" piece, Dan Pero, President of American Justice...
David Michaels on WHMP
Posted on February 02, 2009David Michaels (who will be presenting the Clason Lecture at Western New England College School of Law this Thursday at noon) will appear on WHMP's Bill Dwight Show in Northampton, Massachusetts, this morning at 9:15 or so. The station does...
Two Suits Against Pfizer Revived
Posted on February 02, 2009One Alien Torts Claim suit and one Celebrex-related securities claim, both against Pfizer, were revived recently. The WSJ Law Blog has details and links. --BC
Beating Victim Sues Six Flags Over Georgia
Posted on February 01, 2009The AJC has details; essentially, the plaintiff was allegedly beaten by a group of Six Flags seasonal employees. The location of where the fight started is disputed. --BC
Tort Reform in South Carolina?
Posted on January 31, 2009On Thursday, a tort reform bill was introduced in the South Carolina Senate. Supporters argue that the bill will create a more business-friendly climate in the state. The contents? Among other things, the bill would limit the amount of bond...
Personal Injury Roundup No. 22 (1/30/09)
Posted on January 30, 2009We had yet another snow day in Massachusetts, and I'm about ready for spring. Alas, I still have to wait. But we've got our roundup to keep us warm... Reform, Legislation, Policy GAO criticizes FDA (TortsProf) FDA dissidents criticize FDA...
Vandall on Criminalizing Products Liability
Posted on January 29, 2009Frank Vandall (Emory) has posted on SSRN The Criminalization of Products Liability: An Invitation to Political Abuse, Preemption, and Non-Enforcement. Here is the abstract: Senator Arlen Specter called a hearing in March 2006, on a proposal that urges the criminalization...
Oregon Tort Reform Debated
Posted on January 29, 2009Last week, the Oregon Legislature began debating a bill to cap tort liability. The bill would replace a tort cap struck down over a year ago by the Oregon Supreme Court. We reported that decision here. The proposed caps for...
In Wisconsin, Cheerleading Is A Contact Sport
Posted on January 28, 2009Back in December, we reported on the Wisconsin Court of Appeals decision allowing a freshmen cheerleader to bring a negligence claim against her fellow cheerleader because cheerleading was not a contact sport. As the WSJ Law Blog reports, yesterday the...
FDA Dissidents Allege Criminal Investigation Targeting
Posted on January 28, 2009The NY Times today reports that nine FDA scientists who allege that they were forced to approve medical devices that they did not believe were save now contend that they have become the targets of a criminal investigation. The Times...
Peanut Factory Had a History of Problems
Posted on January 28, 2009Coverage/Commentary: Marler, NYT, Kos. --BC
Pfeyth?
Posted on January 27, 2009As noted by our colleagues over at Mass Torts, Pfizer is buying Wyeth for $68 billion creating, in the words of the New York Times, a "pharmaceutical behemoth." - SBS
GAO Issues Report Critical of FDA
Posted on January 27, 2009Last week, the Government Accountability Office issued a report (large pdf) identifying the FDA as a "high-risk area[]needing broad-based transformation to address major economy, efficiency, or effectiveness challenges." The summary notes: The second new area is protecting public health through...
Lileks on Peanut Butter
Posted on January 26, 2009James Lileks, whom I like when he's funny and get annoyed by other times, has one of the former type columns today, discussing the peanut butter salmonella situation. --BC
Emissions Order a Precursor to Preemption Policy?
Posted on January 26, 2009The folks at Pharmalittle think so, arguing that President Obama's rejection of the Bush administration's bar on state emissions rules may also suggest a similar resistance to preemption arguments. --BC
Choices Facing Cass Sunstein
Posted on January 26, 2009The Pump Handle has a post summarizing the Center for Progressive Reform's White Paper discussing the regulatory choices facing President Obama's regulatory czar Cass Sunstein. --BC
"Air Glory" Suit Settled
Posted on January 25, 2009In mid-2007, I posted about the investigative report into the death of a teenage girl on an "Air Glory" ride, which is somewhat similar in concept to the popular "SkyCoaster" swing ride, but quite different in implementation. The lawsuit that...
Hylton on the Economics of Nuisance Law
Posted on January 24, 2009Keith Hylton (Boston) has posted The Economics of Nuisance Law on SSRN. Here is the abstract: Economic analysis of nuisance law can be divided into two branches: the transaction cost model and the externality model. The two models provide a...
Symeonides on Choice of Law in Cross-Border Torts
Posted on January 23, 2009Symeon Symeonides (Willamette) has posted Choice of Law in Cross-Border Torts on SSRN. From the abstract: This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four...
Historian Excluded from Vinyl Chloride Case
Posted on January 23, 2009As is common, Gerald Markowitz, a historian, was named as an expert for the plaintiffs in a vinyl chloride case; I've written an article that related to discovery in the peer review process related to his book, and I've also...
Lawyer Advertising on teh Interwebs
Posted on January 22, 2009Eric Turkewitz has a careful analysis of the various potential ways that lawyers in New York might be able to get around the current ethical restrictions on advertising, as well as some suggestions about how to better control advertising. --BC
The Prosser Notebook: Classroom as Biography and Intellectual History
Posted on January 22, 2009A draft of my latest article, The Prosser Notebook: Classroom as Biography and Intellectual History, is available on SSRN. Some of you may recall my series of posts--Post 1, Post 2, Post 3, Post 4, Post 5, Post 6--on the...
Egilman on Zyprexa Settlement
Posted on January 22, 2009Dr. David Egilman has a post at the Pump Handle blog regarding the settlement of civil and criminal matters by Lilly in the Zyprexa off-label marketing case. Egilman, who acknowledged in a sworn affidavit to violating a protective order in...
Problems with the CPSIA
Posted on January 21, 2009I'm rather late to linking to it, but Walter Olson's Forbes piece is an excellent overview of the unintended consequences of the well-intentioned CPSIA. Consumerist.com has done some relevant posts as well. --BC
Beisner and Miller on MDL Reform
Posted on January 21, 2009John Beisner and Jessica Miller (both partners at O'Melveny & Myers) have published "Litigate the Torts, Not the Mass: A Modest Proposal for Reforming How Mass Torts Are Adjudicated" (pdf) as a monograph with the Washington Legal Fund. The monograph....
Karapanou and Visscher on Pain & Suffering Damages
Posted on January 20, 2009Vaia Karapanou and Louis T. Visscher (Erasmus University Rotterdam) have posted "The Magnitude of Pain and Suffering Damages from a Law and Economics and Health Economics Point of View" on SSRN. The abstract provides: In this paper we investigate the...
Hochfelder Surveys NY Foot Fracture Verdicts
Posted on January 20, 2009Over at New York Injury Cases Blog, John Hochfelder surveys verdicts and settlements in recent foot injury cases (excluding amputations). Hochfelder finds a wide range from a low of $75,000 to a high of $2.2 million. He attributes the disparity...
Outdated Whois Information Leads to Potential False Light Tort
Posted on January 20, 2009Eric Goldman has more. --BC
FDA's Role in Peanut Butter Salmonella
Posted on January 19, 2009The Secret Ingredients blog of the Seattle Post-Intelligencer has a post today addressing the peanut butter salmonella situation, reporting that the FDA is doing relatively little to determine the scope of the outbreak. Not surprisingly, Bill Marler's blog is the...
David Michaels to Speak at WNEC Law
Posted on January 18, 2009I'm happy to announce that David Michaels, author of Oxford Press-published Doubt is Their Product, will be giving the first Clason Lecture at Western New England College School of Law, on Thursday, February 5, at noon. It is open to...
Twerski on Potential Claims by the Passengers of Flight 1549
Posted on January 17, 2009The WSJ Law Blog asks the question "Can the Passengers of Flight 1549 Sue for Emotional Distress"? Of course, one can sue for anything. However, the piece goes on to evaluate the potential claims, relying on the expertise of Aaron...
Personal Injury Roundup No. 21 (01/16/09)
Posted on January 16, 2009I hope you enjoyed San Diego as much as I did. It's really cold in Harrisburg. In torts... Reform, Legislation, Policy Oregon state Senator calls for attention to tort reform in that state despite budget woes. (LegalNewsline) The first data...
Some Changes at Asbestos.com
Posted on January 16, 2009I haven't done a really careful look, but they've at least removed the references to the site being a resource since 1995. They've also updated the disclaimer and it's much more detailed and, in my view, a much clearer statement:...
Welcome to the Blogosphere to NewYorkInjuryCasesBlog
Posted on January 15, 2009The blog, written by John Hochfelder, has been online for about a month and will focus on pain and suffering awards. --CJR
Atlanta Journal-Constitution Opposes Proposal to Protect FDA-Approved Drugs
Posted on January 15, 2009The editorial is available here. The opening paragraph: Here are four compelling reasons why Gov. Sonny Perdue?s proposal to create a liability-free haven for drugmakers threatens the welfare of Georgians ?- Vioxx, Rezulin, fen-phen and Bextra. --BC (who has done...
Lilly Does Indeed Settle Off-Label Marketing Cases; Includes Misdemeanor Plea
Posted on January 15, 2009One story is here. Lilly pleaded guilty to a misdemeanor violation of the FDCA and is paying a $515 million fine, described as the largest fine in history. The balance of the $1.4 million will go to settle civil claims,...
Two (More) from Legal Theory Blog
Posted on January 15, 2009In the last two days, Larry Solum has posted on two articles of interest to torts enthusiasts. First, Joni Hersch and Kip Viscusi (both at Vandy) have posted on SSRN Punitive Damages by Numbers: Exxon Shipping Co. v. Baker. Here...
FDA Issues Guidance on Promotion of Off-Label Use
Posted on January 14, 2009The FDA has issued a final "Guidance for Industry" which provides "the agency's views on the distribution of medical journal articles and scientific or medical reference publications that discuss unapproved new uses" for FDA-approved drugs and medical devices...
GA Governor Lists Tort Reform As Priority
Posted on January 14, 2009At Tuesday's "Eggs and Issues Breakfast," Georgia Governor Sonny Perdue outlined his priorities for 2009, including two tort reform items. Although the details are vague, the Governor's press release describes a modified loser-pay rule, where a losing plaintiff would bear...
Lilly May Be Settling Zyprexa Cases
Posted on January 14, 2009The NYT reports that Lilly is paying around $1.4 billion (that's with a B) to settle civil and criminal charges in connection with its marketing of Zyprexa. This is on top of piles and piles of money spent to settle...
Acting Directors Named at CDC and FDA
Posted on January 13, 2009William Gimson III, the Chief Operating Officer at the CDC, will begin serving as temporary Director of the CDC next week when President-Elect Obama is sworn in. Similarly, Frank Torti, the FDA's current science chief, will begin serving as Acting...
Thoughts on Libel Tourism
Posted on January 13, 2009David B. Rivkin Jr. and Bruce D. Brown (both from Baker Hostetler's DC office) had an op-ed in Sunday's WSJ on the phenomenon of libel tourism: the practice of suing Americans for defamation in foreign courts (particularly England) where First...
Wanted: Topics for Papers on Scientific Evidence
Posted on January 13, 2009I am teaching a writing seminar this semester about experts and scientific evidence. If any readers have topics they've been thinking could use a careful look, please send them along (wchilds AT law DOT wnec DOT edu). Practitioners, academics, etc.,....
Chicken Case Dismissed
Posted on January 13, 2009Judge Sessions dismissed the case of three prisoners who sued ConAgra based on allegedly improperly processed chicken. He did not reject the notion that they may have obtained something other than chicken ("Butts may have eaten something other than chicken...
More on Prisoner Fowl Case
Posted on January 12, 2009Bill Marler is unimpressed by the case, which I noted last week and which went to trial later in the week. Marler's post, though, doesn't really identify anything particularly weak about the case. Indeed, other than the first paragraph, it...
"FDA Is Lax on Oversight During Trials, Inquiry Finds"
Posted on January 12, 2009That's the title of a Gardiner Harris article in today's NY Times. The opening: The Food and Drug Administration does almost nothing to police the financial conflicts of doctors who conduct clinical trials of drugs and medical devices in human...
Personal Injury Roundup No. 20 (1/9/09)
Posted on January 09, 2009I hope you are making progress on your New Year's resolutions. Here's what happened in torts for the first week of 2009: Reform, Legislation, Policy FDA announced a new rule that will require food and cosmetic labels to disclose color...
More Web Shenanigans
Posted on January 09, 2009Erik Turkewitz is experiencing some of the sketchier side of law firm advertising too. --BC
Pacman Jones to Sue ESPN Over Reports of Additional Strip Club Incident
Posted on January 08, 2009And Mike Florio (a lawyer and proprietor of ProFootballTalk.com) contemplates whether the now-former Dallas Cowboy Adam "Pacman" Jones has a reputation to harm. --BC
Prisoners Sue Over "Vile" Chicken Dinner
Posted on January 07, 2009The Burlington Free Press reports on a trial to start this week in federal court in Vermont, brought by prisoners against ConAgra for an allegedly foul frozen chicken dinner. [The plaintiff] Butts had started munching on a chicken breast when...
"Damages" Second Season
Posted on January 07, 2009The hit Damages returns for a second season tonight at 10 pm (EST) on FX. If you missed this show last year, Season One was a tort-full story line. Glenn Close stars as Patty Hewes, a New York litigator who...
Oregon Med Mal Fight Approaching
Posted on January 07, 2009So reports LegalNewsLine.com regarding a bill that would cap damages for doctors in the Oregon Health & Science University, but not for physicians throughout the rest of the state. Democratic Senator Alan Bates has said that he will block any...
An Interesting Invitation and Some Digging: Asbestos.com
Posted on January 07, 2009I got this e-mail yesterday: William G. Childs, I am Jesse Herman, the Awareness Coordinator at the Mesothelioma Cancer Center (www.asbestos.com). Lately I have been reaching out to attorney bloggers and site administrators in efforts to getting some of our...
Pothole Map No Longer All That Useful
Posted on January 06, 2009The NYT has a fascinating piece (h/t Overlawyered) on a phenomenon I'd never heard about -- maps purporting to detail thousands of sidewalk defects throughout New York City, used in lawsuits to show that the city had notice of dangerous...
Are you in San Diego? Informal Torts Discussion at AALS
Posted on January 06, 2009The AALS Torts & Compensation Section will be having an informal discussion about Torts teaching and scholarship at the AALS Annual Meeting in San Diego this week. The group will meet in the lobby bar of the Marriott at 4:45...
Sebok on the Supreme Court's Latest Preemption Decision: Altria Group v. Good
Posted on January 06, 2009In his latest Findlaw column, Tony Sebok discusses the Supreme Court's recent preemption decision in Altria Group v. Good (pdf). Sebok believes that "the two deeply-divided opinions produced by the Court give us hints as to how it will decide...
Pharmalot Ending
Posted on January 05, 2009So posts Ed Silverman. Alas. It was a terrific resource for all people interested in the world of pharma. --BC
"Big Dose of Change" for FDA on the Way?
Posted on January 05, 2009The Philadelphia Inquirer has a story today covering President-Elect Obama's task in choosing an FDA head. The (clever) lede: President-elect Barack Obama is prowling for a new head for the U.S. Food and Drug Administration, which, in the eyes of...
No Health Effects, but Punitives Possible Against 3M on Trespass and Negligence
Posted on January 03, 2009The Star Tribune has details on the trial court ruling relating to PFCs in the groundwater in Washington County, Minnesota. Essentially, the plaintiffs can't go forward with claims that the PFCs harmed their health, but can proceed on a trespass...
Two By Leflar
Posted on January 01, 2009Just in time for the AALS panel on Foreign Tort Law Beyond Europe, Robert Leflar (Arkansas) has posted on SSRN two pieces about regulating the Japanese medical profession. First up is The Regulation of Medical Malpractice in Japan. Here is...
Born, Viscusi, and Baker on Med Mal Tort Reform Effects
Posted on January 01, 2009Patricia Born (Cal State, Northridge), Kip Viscusi (Vanderbilt), and Tom Baker (Penn) have posted The Effects of Tort Reform on Medical Malpractice Insurers' Ultimate Losses on SSRN. Here is the abstract: Whereas the literature evaluating the effect of tort reforms...
200,000
Posted on December 31, 2008At about 9:00 this morning, we received our 200,000th visitor to the TortsProf blog. (We're closing in on the 300,000th page view.) (In case you're curious, the 200,000th visit was from someone at the Chicago office of Jones Day. Thanks...
Arkansas Sizzler Suit Settled
Posted on December 31, 2008Earlier this year, I noted the lawsuit, related to the death of a seven-year-old boy on a Sizzler carnival ride on Easter 2007. It's now settled for an undisclosed amount. I've posted about the Sizzler and somewhat similar incidents here,...
Negligent Cheerleading
Posted on December 30, 2008According to the WSJ Law Blog, the Wisconsin Court of Appeals has cleared the way for a ninth grade cheerleader to bring a negligence claim against her fellow student cheerleader for allegedly failing to properly spot her during a stunt....
Tort Reform on GOP Agenda in Tennessee
Posted on December 30, 2008The Tennessean reports that GOP lawmakers have tort reform on their agenda for next year. Possible legislation may include caps on damages against nursing homes, although a similar measure died in committee last year. - SBS
China Prepares Tort Legislation
Posted on December 27, 2008Tort legislation is now under consideration in the National Peoples' Congress. From CRIENGLISH.com: The Beijing-based "Guang Ming Website" published a commentary saying that the long-awaited tort liability law will classify civil wrongs against persons or properties and protect people's rights...
Professor Dan Dobbs Receives 2009 William L. Prosser Award
Posted on December 26, 2008From the announcement e-mail: Dan Dobbs will receive the William Prosser award for outstanding contributions to Torts scholarship, teaching, and service at this year's AALS Torts Section Meeting. Professor Dan B. Dobbs, the Regents & Rosentiel Distinguished Professor of Law...
Mark Lanier Addresses Jon Hanson's Torts Class
Posted on December 26, 2008Mark Lanier, of Vioxx litigation fame, addressed Jon Hanson's Torts class at Harvard last month. He discussed the psychological aspects of tort law, focusing on communicating with juries. A summary and webcast are available here. --CJR
Grady on Tort Liability and Irrational Actors
Posted on December 25, 2008Mark Grady (UCLA) has posted The Free Radicals of Tort on SSRN. Here is the abstract: Rational and irrational people are typically held to an identical tort standard when it is a question of their own liability. On the other...
Medical Publisher Reviews Claim of Ghostwriting by Wyeth
Posted on December 24, 2008The New York Times reports that Elsevier, a publisher of medical journals, is investigating whether an article published in the May 2003 edition of the American Journal of Obstetrics and Gynecology was ghostwritten by Wyeth. The article found "no definitive...
Tiger Mauling Victim Sues SF Zoo
Posted on December 24, 2008Last Christmas, a seventeen-year-old was mauled to death at the San Francisco Zoo. His parents are suing, contending that the barriers around the tiger's pen were inadequate. Another story points out that his friends (who were not killed) sued earlier...
Who Should Pay for Litigation Costs?
Posted on December 23, 2008In today's Wall Street Journal, Dan Slater examines the question of who should pay the costs of litigation - a loser pays rule as in Canada, Germany and the U.K., or the so-called American rule where each side bears its...
Kim on "Imposing Tort Liability on Websites for Cyber-Harassment"
Posted on December 23, 2008The new volume of the Yale Law Journal Pocket Part includes an article by Nancy S. Kim (Cal Western) on "Imposing Tort Liability on Websites for Cyber-Harassment." Kim acknowledges that websites are immune from liability as publishers, but argues that...
Good Samaritans in California
Posted on December 22, 2008I linked to a story about it in Friday's Roundup, but it's worth noting separately that California's Supreme Court last week ruled that the tort liability protection for rescuers is narrow. For more, see LegalNewsline.com, Law.com, and the opinion itself...
Personal Injury Roundup No. 19 (12/19/08)
Posted on December 19, 2008Note: There will be no roundup for the next two weeks. We'll return with the roundups on January 9. Posting will otherwise continue, though perhaps sporadically, over the break. Last week, Chris wrote from amidst Blue Books. This week, I'm...
Noah on "Product Stewardship" in Torts
Posted on December 18, 2008Lars Noah (Florida) has posted Platitudes about "Product Stewardship" in Torts: Continuing Drug Research and Education on SSRN. Here's the abstract: This paper focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends...
Austrailia Redefines Old Tort of "Breach of Confidence"
Posted on December 17, 2008The Australian reports that the Victorian Court of Appeal in Australia has expanded the old tort of "breach of confidence" to allow liability even if the publisher of material created in confidence was "unaware the material in question is covered...
British Group Claims Child Food Ads Are "Misleading"
Posted on December 16, 2008The BBC reports that the British Heart Foundation has called for tougher regulation of child food advertisements in Britain: It suggested that companies used a variety of "misleading" techniques to make them seem healthier than they actually are. One example...
"Judicial Hellholes 2008"
Posted on December 16, 2008The American Tort Reform Association has released its annual "Judicial Hellholes" (pdf) ranking: West Virginia South Florida Cook County, Illinois Atlantic County, New Jersey Montgomery and Macon Counties, Alabama Los Angeles County, California Clark County, Nevada Rio Grande Valley and...
Altria Group v. Good decided
Posted on December 15, 2008SCOTUSWiki entry here; opinion here, concluding that the labeling act does not preempt state law fraud claims in connection with "light" cigarette advertising. --BC
Chicken Little, Tort Law, & Roller Coasters Revisited
Posted on December 15, 2008The nature of blogging is such that it's easy to lose a long-term view of things (at least for me); an event occurs, predictions are made, and we forget about it. But this time of year, where amusement parks tend...
New Hampshire Med Mal Screening Under Scrutiny
Posted on December 15, 2008A few years ago, New Hampshire adopted med mal screening panels -- requiring plaintiffs to submit their cases to a panel. While the panel (made up of a doctor, a lawyer, and a judge) (must resist a "...walk into a...
Baker on Liability Insurance at the Tort-Crime Boundary
Posted on December 14, 2008Tom Baker (Penn) has posted Liability Insurance at the Tort-Crime Boundary on SSRN. Here's the abstract: This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through...
Washington Absestos Duty to Warn Companion Cases
Posted on December 13, 2008On Thursday, the Washington Supreme Court, by a 6-3 vote in companion cases, held that makers of nonhazardous component parts, such as pumps or valves, have no duty to warn about asbestos products (like insulation or replacement gaskets) made by...
Shapo: Experimenting with the Consumer
Posted on December 12, 2008Marshall Shapo (Northwestern) has a new book available from Greenwood Publishers: Experimenting with the Consumer: The Mass Testing of Risky Products on the Public. Here's the abstract: Experimenting With The Consumer exposes the hazards of the mass-market experimentation in which...
Personal Injury Roundup No. 18 (12/12/08)
Posted on December 12, 2008As I sit amid the bluebooks, here's what's new in torts... Reform, Legislation, Policy New Trucking Regulations Aim to Increase Safety (Day on Torts) Is CAFA Unconstitutional in Some Applications? Mark Moller (DePaul) says yes (Wolfman/Consumer Law & Policy Blog,...
Canadian Class Action Invokes Rylands, Alternative Theories
Posted on December 11, 2008A group of neighbors in Ontario have filed a class action against multiple parties for loss of property values due to water contamination. The Timmins Daily Press reports plaintiffs allege defendants are ?liable in negligence, nuisance, trespass and pursuant to...
Too Much Drug Safety Information?
Posted on December 09, 2008Today's Wall Street Journal reports on whether the large amount of drug safety information available to the public could be harming consumers: Too much information about drug safety -- disseminated through media, online alerts from consumer watchdog groups and even...
Why Bad Hospitals Stay Open
Posted on December 09, 2008In the latest article in its "Evidence Gap" series, The New York Times examines why bad hospitals stay open, pointing to a lack of national oversight as a culprit: Unlike some other nations, including France, the United States has no...
Pools Race to Reconfigure Drains
Posted on December 08, 2008The local paper has an article about public pools' efforts to get into compliance with the impending federal requirement for safer drains. The Virginia Graeme Baker Pool and Spa Safety Act is administered by the U.S. Consumer Product Safety Commission,...
First Payments in Valdez Litigation
Posted on December 06, 2008Only nearly twenty years after the oil spill, plaintiffs are starting to get damages. --BC
Personal Injury Roundup No. 17 (12/5/08)
Posted on December 05, 2008On this day in history, prohibition ended as Utah became the 36th state to ratify the 21st Amendment to the Constitution, repealing the 18th Amendment. On to the week's news in the world of torts: Reform, Legislation, Policy Manhattan Institute...
Hyman on Damage Caps
Posted on December 05, 2008David Hyman (Illinois) is doing a series of posts at Volokh on non-economic damage caps. --BC
Miller on the Wal-Mart Suit
Posted on December 04, 2008Ron Miller comments on the five-minutes-after concept in high-profile cases, where suits are filed immediately. It seems to me that having the suit filed has (at least) one benefit: it potentially gives the decedent's family's lawyer discovery powers that much...
Welcome to the Blogosphere...
Posted on December 04, 2008Alberto Bernabe (The John Marshall Law School) has started a blog aimed specifically at his students, but also applicable to general readers interested in torts. The link is here. --CJR
Williams Punitives, Round Three
Posted on December 03, 2008SCOTUSBlog has a preview of Wednesday's argument -- the third! -- relating to the Oregon state court tort litigation against Philip Morris and the punitive damages awarded in that litigation. --BC
Wal-Mart Sued by Family of Trampled Temp Worker
Posted on December 03, 2008Reuters has the story. Damour's death was caused by "the carelessness, reckless negligence, wanton disregard for public safety and gross negligence" in the "staging, conducting and advertising for sales events," said the lawsuit, filed in Bronx Supreme Court...
DRI Web Seminar on Defending Medical Monitoring Claims
Posted on December 02, 2008DRI is hosting a web seminar on "Defending Medical Monitoring Claims - Recent Developments and Best Practices" on Tuesday, December 16th. Sean Wajert (editor of Mass Tort Defense and a partner at Dechert) will be one of the speakers. (Via...
Chevron Wins Nigerian ATCA Case
Posted on December 02, 2008The LA Times reports that a federal jury found in favor of Chevron in the Alien Tort Claims Act case brought by Nigerian villagers. The Wall Street Journal Law Blog and Am Law Daily both have more on the verdict....
Neighbors Sue Stinky Pig Farm
Posted on December 02, 2008Looking for a hypo for your final exam? Look no further. Residents of Richland Township, Missouri, have sued the local pig farm alleging that the smell and "toxic gases" from the farm have caused physical illness such as nausea, vomiting...
"Son of Engle" Starts Soon
Posted on December 01, 2008The first of 8,000 individual tobacco cases that resulted from the decertification of the Engle class will start soon. They were to start today, but flooding in the Broward County Courthouse delayed the trial. The plaintiffs in these cases will...
Civil Liability for Wal-Mart Worker Death?
Posted on December 01, 2008Eric Turkewitz has brief thoughts. --BC (Forgive the delayed posting; let's just say that I spent a lot more time in the Philly airport yesterday than is desirable.)
New Trial for UT Frat
Posted on December 01, 2008A little ways back, a frat at UT-Austin lost by default a wrongful death suit, with judgment entered for over $16 million. The trial judge has now granted a new trial, finding that the failure to respond was an oversight....
AALS Torts and Compensation Section's "Foreign Tort Law: Beyond Europe"
Posted on November 29, 2008Ellen Bublick (Arizona) has announced the Torts and Compensation Section's panel presentation for the 2009 AALS Annual Meeting in San Diego. The panel will be held on Friday, January 9th at 10:30 a.m. A list of presenters is here. A...
Goldberg on Solomon's "Judging Plaintiffs"
Posted on November 28, 2008John Goldberg (Harvard) has responded to Judging Plaintiffs by Jason Solomon (Georgia) in Vanderbilt Law Review En Banc. Here is the abstract: Jason Solomon?s very interesting Article Judging Plaintiffs argues that neither efficient-deterrence theories nor corrective justice theories adequately explain...
Jury Begins Deliberations On ATCA Claims Against Chevron
Posted on November 26, 2008A San Francisco jury heard closing arguments yesterday in an Alien Tort Claims Act case against Chevron. The suit alleges that Chevron aided and abbetted the deaths of two Nigerians who were protesting Chevron's oil production in Nigeria. One World...
Lloyd's of London's "Litigation and Business: Transatlantic Trends"
Posted on November 25, 2008Lloyd's of London has issued its latest report "Litigation and Business: Transatlantic Trends" (pdf). In this report, Lloyd's predicts that class action litigation will grow in Europe, and notes that Portugal, the Netherlands, Spain and Sweden already have mass litigation...
Sebok on Obama's Effect on Tort Law
Posted on November 25, 2008In his latest Findlaw column, Tony Sebok examines President-elect Obama's impact on tort law and the civil litigation system generally. Sebok predicts "very few changes" and "few rollbacks" of tort reforms accomplished during the Bush Administration. In support of this...
A Final (?) Note on the Kentucky Kingdom Settlement
Posted on November 24, 2008As I noted last week, Six Flags settled with the Lasitter family regarding their daughter's injuries. As of the initial reports, it was not clear whether the park chain had settled its suit against Intamin, the ride's manufacturer; InsuranceJournal.com reports...
Vaccine Program: A Failure?
Posted on November 24, 2008An activist and founder of the National Vaccine Information Center, Barbara Loe Fisher, thinks so, as she said in a recent speech to the Advisory Commission on Childhood Vaccines. She contends that the no-fault approach has still precluded recovery for...
Barker Files Suit in Airplane Crash
Posted on November 22, 2008Rocker Travis Barker is blaming pilot error and faulty equipment for the September crash in which he was severely injured and four others were killed. The suit focuses on the pilots' decision to abort the takeoff and the condition of...
Personal Injury Roundup No. 16 (11/21/08)
Posted on November 21, 2008One scheduling note: there will be no Roundup next Friday; happy Thanksgiving! Reform, Legislation, Policy Massachusetts doctors say they're practicing defensive medicine out of fear of lawsuits [MassLive.com] Allegations of misconduct against FDA scientists [NYT] New Lawsuits Wrestlers sue college...
Updated: Six Flags Kentucky Kingdom Settles Case
Posted on November 21, 2008Six Flags has reached a settlement with the Lassiter family, whose daughter Kaitlyn had her feet severed when riding the Superman: Tower of Power ride in 2007. Kentucky.com has the almost non-existent details; Biz Journals says that, unsurprisingly, the terms...
Simons on Consequentialism
Posted on November 20, 2008As expected, Ken Simons (Boston) has brought a lively discussion to Prawfsblawg. His posts on "Creeping Consequentialism and Insidious Economics" are here and here. Make sure to read the comments too. TortsProf John Oberdiek (Rutgers-Camden) and others have posted their...
Solomon on Tort Theory
Posted on November 20, 2008Jason Solomon (Georgia) has posted on SSRN Equal Accountability Through Tort Law. Here's the abstract: The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice...
DC Circuit Hears Defamation Case Against Congressman Murtha
Posted on November 19, 2008Yesterday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in the defamation case against Representative John Murtha (D-Pa) for statements he made concerning Staff Sgt. Frank Wuterich's role in the deaths of Iraqi civilians. Wuterich sued...
The Levine Chat
Posted on November 19, 2008You can see a chat with Diana Levine, the plaintiff whose case frames the preemption issue in Wyeth v. Levine, here. --BC
Congress Investigating FDA Medical Device Review Process
Posted on November 18, 2008Ed Silverman reports that the House Energy and Commerce Committee is investigating allegations that managers at the FDA Center for Devices and Radiological Health have "corrupted and interfered with the scientific review of medical devices." In a statement, John Dingell,...
A Flurry of iPhone Class Actions
Posted on November 18, 2008The Complex Litigator reports on a new class action regarding the iPhone. This new suit alleges that the casing of the iPhone 3G is "defective and prone to cracking." This latest class action joins ones filed back in September regarding...
Chat with Levine of Wyeth v. Levine
Posted on November 17, 2008FireDogLake will be hosting a chat with Diane Levine and the Alliance for Justice regarding the pending case Wyeth v. Levine. The chat will be tomorrow (Tuesday) at 3:00 eastern, and I am told that you have to be a...
Restatement Anniversary Observed
Posted on November 17, 2008What does one get a Restatement for its tenth birthday? A symposium, evidently. Read about it at our neighbors the Products Liability Prof Blog. --BC
Paxil Test Case Dismissed on Statute of Limitations Grounds
Posted on November 17, 2008A judge in Philadelphia has dismissed, on statute of limitations grounds, a case against Paxil for failure to warn against an increased risk of suicide. The case was seen as a test case, but, based on the very narrow holding,...
The Tobacco Settlement - A Look Back
Posted on November 16, 2008It's been ten years since the landmark settlement between tobacco companies and the attorneys general of various states. All week, NPR is taking a look back at what has and hasn't changed, with segments airing on both Morning Edition and...
Exxon Damages Inching Ever Closer to, You Know, Plaintiffs
Posted on November 16, 2008The federal judge overseeing the eternal Exxon Valdez litigation rejected a request to modify the plan for distribution of punitive damages, a portion of which will -- maybe, perhaps, soon -- be distributed to plaintiffs while the parties continue to...
Scales Reviews Abraham's "Liability Century"
Posted on November 15, 2008Adam Scales (W&L) has posted his review of Kenneth Abraham's The Liability Century on SSRN. Here's a sample: In this Book Review, I provide an overview of Abraham's major themes, comment on their persuasiveness, and offer some direction to readers...
Personal Injury Roundup No. 15 (11/14/08)
Posted on November 14, 2008It's been almost exactly a year since I started blogging here. I want to thank Bill and Sheila again for such a great opportunity. Now, on to torts... Reform, Legislation, Policy Senate Finance Chair Max Baucus (D-MT) calls for legal...
Baucus Plan Has Liability Changes
Posted on November 13, 2008Max Baucus has introduced a health care reform proposal. Among its provisions is an attempt to encourage states to adopt early-offer reforms, as well as "health courts" (with experts evaluating claims for compensation). Our own Chris Robinette has a book...
Parchomovsky & Stein on Torts and Innovation
Posted on November 13, 2008Gideon Parchomovsky (Penn/Bar-Ilan) and Alex Stein (Cardozo) have published their essay Torts and Innovation in the Michigan Law Review. The pdf link, courtesy of Co-Op, is here. --CJR
9th Circuit Imposes 3 to 1 Ratio on Punitive Damages Award
Posted on November 12, 2008On Friday, the Ninth Circuit issued its opinion in Southern Union v. Irvin (pdf). The court previously had vacated and remanded the original punitive award, which was 153 times the compensatories. On remand, the trial court reduced the punitive damages...
Brand Name Manufacturer Liable for Generics Made by Competitor
Posted on November 11, 2008In a stunning decision last Friday, the California First District Court of Appeal held that drug manufacturers could be held liable for harm caused by a competitor's generic version of the same drug. In its opinion (pdf), the court wrote:...
Safer Alternative Design Requirement in Florida
Posted on November 11, 2008The Florida Supreme Court is considering whether "plaintiffs who sue companies over design defects in inherently dangerous products such as cigarettes must find a safer design option to prove liability." The Daily Business Review (via law.com) has a full report...
Obama to Hit "Undo"
Posted on November 10, 2008The Washington Post has an AP story that the incoming administration intends to reverse by executive order dozens of Bush administration actions, ranging from stem cell research to climate change-related actions. Not mentioned are the many regulatory agency efforts to...
Tort Law Changes at Top of Oklahoma GOP's List
Posted on November 09, 2008Oklahoma Republicans gained solid control of both legislative branches in last week's election. The governor is still a Democrat, and one who vetoed liability changes last year, but legislators think they may now be able to get a veto-proof majorty.....
TwitteringProf
Posted on November 08, 2008I'm now on Twitter. Note that I am not just posting there about torts-related matters; it'll include some of that, but also just the day to day minutiae that seems to be the coin of that realm. So far (one...
Personal Injury Roundup No. 14 (11/7/08)
Posted on November 07, 2008The first week of November included a historical election, and the following news from the world of torts: Reform, Legislation, Policy NYT Magazine article exploring the safety of drugs manufactured in China, and the FDA's overseas inspection program...
Obama's Election: Tort Law Implications
Posted on November 06, 2008The WSJ published a piece on election day describing various attorney's perceptions of where the civil justice system is likely to head under President-Elect Obama. High on the list for the plaintiffs' bar is legislatively reducing the scope of preemption...
Serwin on Privacy
Posted on November 06, 2008Andrew Serwin (Foley & Lardner) has posted the introductory chapter of his forthcoming book on privacy on SSRN. It offers a "conceptual overview of issues and principles" of the topic. --CJR
Simons at Prawfs
Posted on November 06, 2008Ken Simons (Boston) is doing a guest run at Prawfs this month, so be sure to watch for his posts. His first two are here and here. --CJR
DOJ Investigating Merck & Schering-Plough Over Vytorin Marketing
Posted on November 05, 2008The AP (via law.com) reports that the Department of Justice has started an investigation into whether Merck and Schering-Plough's marketing of Vytorin caused "false claims" to be filed with "federal health care programs." - SBS
More from Robbennolt on Apologies
Posted on November 05, 2008Jennifer Robbennolt (Illinois) has posted "Attorneys, Apologies, and Settlement Negotiations" on SSRN. This is her second piece addressing the effect of apology in litigation. The abstract provides: Empirical researchers have begun to explore the influence of apologies on litigant decision...
Today's the day! GO VOTE!!
Posted on November 04, 2008Today is Election Day in all fifty states. Please go vote! Don't know where your polling place is located? Not sure what identification to bring? Rock the Vote has a handy guide with voter information for all fifty states. -...
McMillian on Nuisance Settlements
Posted on November 04, 2008Lance McMillian (John Marshall- Atlanta) has posted "The Nuisance Settlement 'Problem': The Elusive Truth and A Clarifying Proposal" on SSRN. The abstract provides: Many analysts have studied nuisance-value settlements and the disruption they pose to the administration of civil justice...
"Tort Liability for Human Rights Abuses"
Posted on November 03, 2008That's the title of a new book by George Fletcher (Columbia). A press release announcing it is here. --BC
Wyeth Preview
Posted on November 03, 2008The SCOUTSwiki preview of Wyeth v. Levine preemption case, being argued today, is here. --BC
Wyeth Transcript
Posted on November 03, 2008The transcript from today's argument is here [PDF]. The usual suspects have reports from the argument. --BC
More on the Cyclone Lawsuit
Posted on November 02, 2008The plaintiff's attorney in the case I discussed here sent along the complaint and exhibits to it: Download Cyclone.pdf [PDF]. Readers who aren't interested in the minutiae of roller coaster operations should probably move along now. There are a couple...
Mass Torts in China
Posted on November 01, 2008Defective Chinese products have received a lot of attention recently. Yesterday, Mass Tort Lit Blog posted this interesting piece about how the Chinese handle these issues internally. --CJR
Personal Injury Roundup No. 13 (10/31/08)
Posted on October 31, 2008Happy Halloween to you all (I have a skeleton and Eleanor Roosevelt in my house), and please go vote. But only after reading this week's updates: Reform, Legislation, Policy Asbestos litigation: the gift that keeps on giving [ALI-ABA] Not quite...
New Issue of Journal of Tort Law is Available
Posted on October 30, 2008A new issue of bepress's Journal of Tort Law is now available. It features three articles: Operationalizing Deterrence: Claims Management (In Hospitals, a Large Retailer, and Prisons) by Margo Schlanger A Watershed Moment: Reversals of Tort Theory in the Nineteenth...
Coney Island Cyclone Death Results In Lawsuit Against City
Posted on October 30, 2008Newsday has some details on the death, in which Keith Shirasawa fractured a vertebrae on the Brooklyn roller coaster (the NYPost's coverage from the time is here; I posted about it here). The Newsday story includes this odd bit: Lawyers...
Texas A&M Settles Bonfire Suit
Posted on October 29, 2008Nearly a decade ago, the annual Texas A&M bonfire collapsed, killing a dozen people. The school has now settled litigation arising from the tragedy, agreeing to pay $2.1 million and promising to have engineering oversight if the bonfire ever returns....
Design Defect Law in Illinois
Posted on October 29, 2008In a great teaching case (pdf), the Illinois Supreme Court discussed, at length, the development of defective design standards. In particular, the court examined the use of the risk-utility test versus the consumer-expectation test. The court declined to adopt Section...
"The Evidence Gap"
Posted on October 28, 2008In a series of articles, the New York Times explores "the evidence gap." These articles examine "medical treatments used despite scant proof they work and will consider steps toward medicine based on evidence." In the latest piece, Reed Abelson looks...
"Asbestos Litigation: Where Is It Going? When Will It End" Presented by ALI-ABA
Posted on October 28, 2008ALI-ABA is sponsoring a conference on "Asbestos Litigation: Where Is It Going? When Will It End?" on December 4th-5th in San Antonio, Texas. The program description provides: This advanced course of study examines the reevaluation of asbestos litigation that is...
WSJ on Wyeth
Posted on October 27, 2008The Journal has a piece on the Wyeth v. Levine case, being heard next week. (Any DC readers want to blog the argument?) --BC
Punitives Rejected in Taser Death
Posted on October 27, 2008According to a press release issued by TASER, although it was found 15% responsible for the death of a man tasered by police, the judge, on post-trial motions, vacated the jury's grant of punitive damages. An earlier story on the...
$16.2 Million Default Award in Hazing Death Lawsuit
Posted on October 26, 2008The family of a Marietta, Georgia, college student, Tyler Cross, who died in an alleged frat hazing at the University of Texas was awarded $16.2 million in a default judgment against the Sigma Alpha Epsilon fraternity. Cross, a 2006 Lovett...
Personal Injury Roundup No. 12 (10/24/08)
Posted on October 24, 2008On this day in history, the George Washington Bridge in New York City was dedicated, and the forty-hour work week went into effect in the United States. No historical torts news, so on to recent events: Reform, Legislation, Policy Science...
Two from the Widener Faculty
Posted on October 23, 2008Two of my colleagues on the Delaware campus have recently uploaded torts-related pieces to SSRN. Jean Eggen posted The Synergy of Toxic Tort Law and Public Health: Lessons from a Century of Cigarettes (forthcoming Connecticut Law Review). Meanwhile, Martin Kotler...
Sebok on Judge Weinstein's Decision to Bar Race-Based Actuarial Data
Posted on October 23, 2008In his latest Findlaw column, Tony Sebok addresses Judge Weinstein's recent decision barring the use of race-based actuarial tables in calculating the lifespan of a severely-injured African-American man who sought future medical expenses, and pain and suffering damages...
Passengers Sue Lindsay Lohan for "Shock, Fear, and Panic" During Car Chase
Posted on October 22, 2008Three male passengers have sued Lindsay Lohan based on the 2007 car chase that led to the actress's second DUI arrest. According to People Magazine, the plaintiffs "'felt surprise, shock, fear and panic at Lohan's surprising and sudden act' of...
Five-Year-Old Climbs Six-Foot Fence, Gets on Roller Coaster Tracks
Posted on October 22, 2008...and, remarkably, is fine. A five-year-old got over a six-foot fence and onto the tracks of the Pepsi Orange Streak coaster (formerly the Pepsi Ripsaw) at the Mall of America's amusement park. He was seen by an employee and, after...
Causation in Court: Working Principles for Toxic Tort Cases
Posted on October 21, 2008The Washington Legal Foundation has published "Causation in Court: Working Principles for Toxic Tort Cases" (pdf) authored by Antony Klapper, a partner in the DC office of Reed Smith. The paper focuses on "toxic substances and disease causation," and proposes...
Is Electricity a "Product"?
Posted on October 21, 2008So asks William Ruskin over at Toxic Tort Litigation Blog. (I missed this nugget back in September, and think it worth mentioning, albeit tardily). Ruskin comments on a recent Connecticut decision holding that "once electricity entered the homeowner's residence, it...
Confidentiality in Settlements
Posted on October 20, 2008There's a new RAND paper at SSRN, written by James Anderson of that organization, discussing a situation in which not requiring (indeed, not permitting) confidentiality in settling mass tort cases may be beneficial to defendants. His case study is of...
Squabbling Over Exxon Punitive Damages
Posted on October 20, 2008We don't usually get to hear a lot about what happens after money is released to satisfy (part of) judgments, but in the Exxon Valdez case, we do: It took better than 19 years for Alaska commercial fishermen and other...
The Nation on The Court
Posted on October 20, 2008The Nation this week has a forum on the stakes in the November election in connection with potential Supreme Court nominees. David Vladeck (Georgetown) writes a short preemption piece. --BC
Pfizer Getting out of Cox-2 Litigation
Posted on October 18, 2008Pfizer announced this week that it has reached agreements to settle all of its Cox-2 litigation -- Bextra and Celebrex -- for just shy of $900 million. The settlement will resolve personal injury claims as well as state AG and...
Beyond the Traditional Textbook
Posted on October 18, 2008Eric Johnson (North Dakota), who is guestblogging at Prawfs, posted here about supplementing traditional appellate opinions with a first-person narrative of real cases in his Torts course. (Professor Johnson used chapters from Four Trials by John Edwards)...
Werewolf Mishap
Posted on October 18, 2008It hasn't resulted in litigation (yet?), but I can't resist noting a story that has the headline "Guest suffers minor cut in Six Flags werewolf mishap." A stilt-walking werewolf character at Six Flags Great America's Fright Fest tripped and fell...
Personal Injury Roundup No. 11 (10/17/08)
Posted on October 17, 2008I have no pithy introduction to this week's Roundup. Here it is: Reform, Legislation, Policy AAJ sent out a press release on October 15 entitled "FOIAs Reveal How Bush Administration Made Complete Immunity for Negligent Corporations a Top Priority." The...
Burch on Procedural Justice in Nonclass Aggregation
Posted on October 16, 2008Mass Tort Lit Blog's Elizabeth Chamblee Burch (Florida State) has posted on SSRN Procedural Justice in Nonclass Aggregation. Over at Legal Theory Blog, Larry Solum discusses and recommends the piece. --CJR
Struck By Stripper's Stiletto; Suing
Posted on October 16, 2008One Charles Privette is suing the tastefully named "Booby Trap" strip club in south Florida after he was injured by a dancer's shoe, which allegedly "flew off during a pole dance, shattered the mirrored ceiling and caused glass and the...
City of New Haven Looking for Counsel To Sue Big Pharma
Posted on October 15, 2008Ed Silverman at Pharmalot reports that the City of New Haven is seeking outside counsel to sue Merck and Schering-Plough for "allegedly defective/ineffective pharmaceuticals Vytorin and Zetia," two cholesterol lowering drugs. The city hopes to recover some $400,000 spent on...
A Products Liability Poem
Posted on October 15, 2008In Monday's Writer's Almanac, Garrison Keillor brings us the poem "Warnings" by David Allen Sullivan. An excerpt: A can of self-defense pepper spray says it may irritate the eyes, while a bathroom heater says it's not to be used in...
Fullbright's Annual Litigation Trends Survey
Posted on October 15, 2008Fulbright & Jaworski have released their 5th Annual Litigation Trends Survey. According to the press release, By several key indices, the overall pace of fresh litigation indeed trended downward in 2007-08, with 21% of U.S. companies reporting no new lawsuits...
Pet Food Case Settlement Approved
Posted on October 15, 2008The judge overseeing litigation related to contaminated pet food has approved a $24 million settlement. Of particular note is the fact that the settlement, by its terms, does not provide compensation for the loss of companionship (and some pet owners...
Settlement in Minnesota School Shooting
Posted on October 15, 2008In March of 2005, a sixteen-year-old boy shot and killed seven students at Red Lake High School in Minnesota, injuring others, before killing himself. (He'd also killed his grandfather and his grandfather's girlfriend earlier in the day.) Yesterday, a $1...
Two Conferences of Interest: ABA on Class Actions and Chamber's Annual Legal Reform Summit
Posted on October 14, 2008Two conferences of possible interest to readers: 1. The 9th Annual Legal Reform Summit presented by the Chamber of Commerce, Oct. 29th in DC. Topics include: The Congressional landscape for legal reform post-election; The public's stake in preserving pre-dispute arbitration...
J&J Paid $68 Million to Settle Birth Control Patch Suits
Posted on October 14, 2008In a Bloomberg investigative report, reporter David Voreacos estimates that Johnson & Johnson paid nearly $68 million to settle personal injury suits based on the plaintiff's use of the J&J birth control patch Ortho Evra. - SBS
Campaign Funding in Mississippi Judicial Elections
Posted on October 13, 2008The Clarion Ledger has an interesting piece today addressing judicial campaign finance, specifically the funding of advertising not formally affiliated with a particular candidate. As usual in Mississippi, a good chunk of money is spent in connection with tort policy...
Schuelke on Preemption
Posted on October 13, 2008Former Roundup host and Austin plaintiffs' lawyer Brooke Schuelke has been posting a series of pieces on InjuryBoard about preemption. Worth reading. --BC
Personal Injury Roundup No. 10 (10/17/08)
Posted on October 10, 2008It's a beautiful week here in New England and it was a great week for me (if you'll pardon the self-congratulation), as my colleagues have voted to grant me tenure starting next academic year. It was a lively week in...
Congratulations to Frank McClellan
Posted on October 09, 2008It has (belatedly) come to my attention that Frank McClellan (Temple) has retired after 28 years. Frank, who taught Torts and Medical Malpractice, is an expert in health law. I am indebted to Frank because he was kind enough to...
Kidd and Krauss on the Collateral Source Rule
Posted on October 09, 2008Jeremy Kidd (George Mason) and Michael Krauss (George Mason Law) have posted to SSRN Collateral Source and Tort's Soul. Here is the abstract: Tort reformers have had a modicum of success in their efforts to eliminate or restrict the Common...
Sebok & Zipursky on Wyeth v. Levine (Part II)
Posted on October 08, 2008In Part II of their look at Wyeth v. Levine, Tony Sebok and guest Benjamin Zipursky turn to the merits of the case: "whether there is a sound argument for preemption." Sebok and Zipursky quickly discard what they consider Wyeth's...
Two Upcoming BNA Conferences: Punitive Damages and the Consumer Product Safety Act
Posted on October 08, 2008BNA has two upcoming conferences of interest to blog readers: 1. Wed., Oct. 15th, The New Course of Punitive Damages After Exxon and Philip Morris (Audio Conference). Punitive Damage Calculations - the Supreme Court in recent terms has been addressing...
Alito and Scalia Blame The FTC for Any Consumer Confusion About "Light" Cigarettes
Posted on October 07, 2008Yesterday, the Supreme Court heard argument in the first case on its Oct. Term 2008 docket: Altria v. Good. In Altria v. Good, the plaintiffs allege that the use of the word "light" and "lower tar" on cigarette packaging misled...
Lawyers Circle California Metrolink Crash
Posted on October 07, 2008The LA Times reports that plaintiffs' lawyers have aggressively pursued victims of the Metrolink crash: In the weeks since Metrolink Train 111 crashed head-on with a Union Pacific freight train in Chatsworth, killing 25 and injuring at least 130 others,...
Lawyer by Day, Ref by Sunday
Posted on October 06, 2008A few weeks ago, the end of a Chargers/Broncos football game was decided by a clear mistake by referee Ed Hochuli. The call was reviewed, but the key mistake (incorrectly whistling the play dead) was unreviewable, essentially because it would...
Personal Injury Roundup No. 10 (10/3/08)
Posted on October 03, 2008Reform, Legislation, Policy Illinois AG Lisa Madigan is calling on the CPSC to develop a plan to curb the sale of recalled products online and in second-hand shops. (LegalNewsline) As of October 1st, Medicare will not reimburse hospitals for ten...
Leroy S. Merrifield
Posted on October 02, 2008Leroy S. Merrifield, the Lobingier Professor Emeritus of Jurisprudence and Comparative Law at George Washington University, passed away on September 19th at the age of 90. Although Merrifield was a labor scholar, he also taught Torts. In addition, Merrifield was...
Ex-Priest Sued for Stealing Parishioner's Wife
Posted on October 02, 2008An Illinois man is suing his former priest for professional negligence, infliction of emotional distress, and (because it's Illinois) alienation of affections. In addition, he is suing the church for negligent supervision and retention. According to the reports, the man...
Biden & Torts, Again
Posted on October 01, 2008The WSJ Law Blog has a look at the WSJ's opinion piece today highlighting VP candidate Sen. Joe Biden's tie to the plaintiffs' bar. --BC (whose pinky is healing nicely, if slower than he'd like)
Beck, Herrmann and Zipursky on Preemption
Posted on September 30, 2008First, Drug and Device Law Blog have posted an excellent primer on preemption. As Beck and Herrmann succinctly state: Implied preemption of tort cases is a big deal because how the Supreme Court addresses implied preemption in Levine ? the...
Oregon Health & Science University Settles Six Malpractice Cases
Posted on September 30, 2008The Oregonian reports that Oregon Health & Science University has agreed to settle six malpractice cases for a combined $38.5 million. In December, the Oregon Supreme Court invalidated a damages cap shielding OHSU and other Oregon state agencies from awards...
Cohen on China's Accountability for Its Products
Posted on September 29, 2008In Saturday's Wall Street Journal, Marsha Cohen (UC Hastings) had a letter responding to the WSJ's editorial "The Tort Bar's Comeback." Cohen argues that the epidemic of defective products coming from China is caused by the absence of a tort...
Keitner on Ninth Circuit's Alien Tort Statute Decision
Posted on September 29, 2008Chimène Keitner (UC Hastings) recently wrote a guest post at Opinio Juris analyzing the Ninth Circuit's decision on the Alien Tort Statute (mentioned in Friday's roundup). Keitner finds three lessons in the decision: "1. The crime of genocide requires that...
Personal Injury Roundup No. 9 (9/26/08)
Posted on September 26, 2008We welcomed the first day of fall this past week, as well as the following news from the world of torts: Reform, Legislation, Policy The House Energy and Commerce Committee approved seven health-policy related bills. Life Sciences Legal Update provides...
Obama and McCain on Health Care Reform
Posted on September 25, 2008Yesterday's New England Journal of Medicine published essays by both presidential candidates on their plans for reforming health care in the U.S. McCain's piece: "Access to Quality and Affordable Health Care for Every American." Obama's piece: "Modern Healthcare for All...
Judge Dismisses Mermaid Suit Against P. Diddy
Posted on September 25, 2008In an opinion filed last week, a NY state court judge has dismissed the lawsuit filed against Sean Combs based on the "Mermaids Gone Wild" photos that appeared in Vibe magazine in 2006. In the suit, Maria Dominguez alleged that...
Sebok & Zipursky on Wyeth v. Levine
Posted on September 24, 2008In this week's Findlaw column, Tony Sebok and guest Benjamin Zipursky consider Wyeth v. Levine and the "preemption temptation." Sebok and Zipursky provide a concise summary of the facts and arguments in Levine. They then focus on why the case...
Ups and Downs for Drug Stocks
Posted on September 24, 2008The WSJ Health Blog reports on how more transparency at the FDA could cause volatility in drug stocks. Under a law passed last year, the FDA is just beginning to post quarterly lists of drugs "that could, possibly, carry previously...
Study Find Tort Reform Lowers Insurance Premiums
Posted on September 23, 2008A recent study by Martin F. Grace, the James S. Kemper Professor of Risk Management at Georgia State, and Assistant Professor Ty Leverty (University of Iowa Tippie College of Business) has concluded that insurance premiums are related to the likelihood...
Defamed on the Wildwood Boardwalk
Posted on September 23, 2008Ah, the Jersey shore with its seaside boardwalks filled with games, rides, and fun foods. And apparently tortious behavior. In Senna v. Florimant (pdf), the owner of a Wildwood boardwalk game of chance sued a competitor for defamation and tortious...
Station Settlements: "I Don't Think There's Any Logic to It At All"
Posted on September 21, 2008That's the view of the mother of one victim of the Station nightclub fire in a big picture story in today's Globe (which was inexplicably delivered to our house today, despite the fact that we don't subscribe). (And yes, typing...
Feinman on Litigation Incentives and Insurers in Large Tort Cases
Posted on September 20, 2008Jay Feinman (Rutgers-Camden) has posted on SSRN Incentives for Litigation or Settlement in Large Tort Cases: Responding to Insurance Company Intransigence. Here is the abstract: The purposes of this article are to describe some ways in which the practices of...
Personal Injury Roundup No. 8 (9/19/08)
Posted on September 19, 2008Has anyone else noticed that "premier week" for the networks' new TV season falls later and later each year? Anyway, on to what's happened this week in torts... Reform, Legislation, Policy FDA warns consumers about Chinese baby formula possibly contaminated...
Talk Like a Tort Pirate
Posted on September 19, 2008Still can't really type well, but I can at least urge you all to celebrate Talk Like a Pirate Day. From last year's post on the subject: Some suggested terms: Res ipsa loquitARRRR! Matey, ye caused a batt'ry when ye...
Family of Scout Killed by Totem Pole Settles Lawsuit
Posted on September 18, 2008In a tragic local incident last summer, a nine-year-old boy was killed at the Hidden Valley Boy Scout Camp in Perry County, PA by a falling totem pole. The boy and other children were playing near the base of the...
Man Down!
Posted on September 18, 2008Here's wishing Bill a speedy recovery. In solidarity, I typed this post without my right pinky (It's a pain!) --CJR
Judge Overrules NYC's Objections to Use of "Severity Chart" in 9/11 Respiratory Cases
Posted on September 17, 2008At a status conference yesterday, U.S. District Judge Alvin Hellerstein rejected objections by NYC to the use of a "severity chart" in the 9/11 respiratory illness cases. As reported by the New York Law Journal (via law.com), Special Masters James...
NJ Judge Finds Exxon Mobil Refinery Pollution Created A Public Nuisance
Posted on September 17, 2008The New Jersey Law Journal (via law.com) reports on a ruling by a New Jersey judge finding Exxon Mobil liable for causing a public nuisance by polluting the waterways, land, and wetlands at two former refinery sites. "The damage to...
Wyeth Reply Brief Filed
Posted on September 17, 2008Drug & Device Law has a copy of the Reply Brief filed by Wyeth in Wyeth v. Levine, which is scheduled for oral argument before the Supreme Court on Monday, November 3rd. In addition to the brief itself, Beck &...
A Hiatus Perhaps
Posted on September 16, 2008I (Bill) am typing mostly one handed as I broke my pinky this morning. (I fell off my bike. In our yard. Please feel free to make fun.) Typing one handed is slow and annoying. I thus might not be...
Updated: Six Flags Sues Ride Manufacturer
Posted on September 16, 2008As I predicted, Six Flags has sued Intamin, the manufacturer of the ride on which a teenage girl had her feet severed. Update: A more complete story here. --BC
New Damages Caps Proposed For Suits Against Oregon State Agencies
Posted on September 16, 2008The Oregon Health & Science University and the Oregon Trial Lawyers Association have agreed on new damages caps in torts suits against government agencies. According to a press release, "[t]he 'per claim' limit would be set at $1.5 million effective....
Forwarding Employer Email To Personal Account Supports Conversion Claim
Posted on September 16, 2008In a recent opinion (pdf), the United States District Court for the Western District of Virginia addressed a 21st century conversion claim: a former employee forwarded an allegedly proprietary email to his personal account, and then used the information to...
New Risks for Antipsychotics in Youth
Posted on September 15, 2008The Times has details. The lede: A new government study published Monday has found that the medicines most often prescribed for schizophrenia in children and adolescents are no more effective than older, less expensive drugs and are more likely to...
Jockey Sues Track Owner
Posted on September 15, 2008Alas, the story is paid subscription only, but our local paper reports that the owner of the Three-County Fair has been sued by Christopher Martin, a Maryland jockey, for injuries suffered when he was thrown from his horse during a...
5 Blogs & 5 Blawgers
Posted on September 14, 2008Beck & Herrmann at Drug & Device Law tagged us last week with the latest Internet meme. (Until their tag, I also was clueless on the meaning of "Internet meme," but it seems to me to be the blogger equivalent...
Reforms in Texas
Posted on September 13, 2008There's another editorial and article asserting various savings and improvements in Texas from the reforms of a half-decade ago; a Texas Hospital Association press release adds in some discussion of what health care providers say they are doing with the...
Law Profs, Defamation, and Insurance Coverage
Posted on September 13, 2008On LawProf, Andrew Beckerman-Rodau (Suffolk) asked the following question: I was just denied a personal umbrella liability insurance policy because I am a professor who has published. According to the insurance company anyone who has published presents a risk of...
Personal Injury Roundup No. 7 (9/12/08)
Posted on September 12, 2008In a world that lost Don LaFontaine, the guy who said "In a world that..." more often than probably else in the world, what can we turn to? Torts! Reform, Legislation, Policy Trial lawyer John Coale thinks McCain won't really...
September 11th in the Classroom
Posted on September 11, 2008A couple of years back, PropertyProf Ben Barros posted about how September 11th should be handled in the classroom. I believe I remember a torts-flavored discussion from about the same time. I'm faced with the issue for only the second...
Klass on Experiments in Tort Law
Posted on September 11, 2008Alexandra Klass (Minnesota) has posted Tort Experiments in the Laboratories of Democracy on SSRN. Here is the abstract: This Article considers the broad range of tort experiments states have undertaken in recent years as well as the changing attitudes of...
Biden v. Palin on Tort Issues
Posted on September 10, 2008As a counterpart to Sheila's post noting a comparison of the top-of-the-ticket candidates, the conservative-leaning LegalNewsLine.com has a story comparing the litigation-related records of the VP candidates. --BC
Federal Judge Finds Engle Tobacco Order Violates Due Process
Posted on September 10, 2008Engle v. Liggett Group involved a class action of approximately 700,000 Florida residents against various tobacco manufacturers. In 1999, a jury found in favor of the class and entered specific findings of fact. In 2006, however, the Florida Supreme Court...
McCain v. Obama on Tort Reform
Posted on September 10, 2008North Carolina Trial Law Blog has a fairly neutral report comparing McCain and Obama's position on tort reform issues. - SBS
Argument Scheduled in Philip Morris III
Posted on September 09, 2008The Supreme Court has scheduled oral argument for Wednesday, December 3rd in Philip Morris v. Williams (pdf). (Via Cal Punitive Damages). - SBS
ALI-ABA Course on Asbestos Litigation
Posted on September 09, 2008ALI-ABA is sponsoring a course on Asbestos Litigation on December 4th-5th in San Antonio, Texas. You also can attend via live webcast. Some of the topics include Where Are We Headed? Facts, Figures, Trends The Revival of the State of...
Genetic Evidence in Toxic Tort Litigation
Posted on September 08, 2008The Drug & Device Blog has a guest post today on that topic and the emerging importance of genetic evidence in toxic tort litigation. Worth a read. --BC
Weinstein Unseals Zyprexa Documents
Posted on September 08, 2008The NYT piece is here; the opinion (long! PDF!) is here. The vast bulk of the opinion relates to certification of a class for institutional payors and denial of a class for individual payors; only at the end are the...
Teaching the Distinction Between Assault and Battery
Posted on September 06, 2008Teaching assault and battery is always fun, as is demonstrating the two are independent torts. The example I have used when teaching there can be a battery without assault (no apprehension) is that a student could sneak up behind me...
Personal Injury Roundup No. 6 (9/5/08)
Posted on September 05, 2008In a week that saw hurricanes and the Republican National Convention, here's what happened in torts. Reform, Legislation, Policy TX liability reforms and a plunge in premiums and lawsuits (amednews.com) (Via Point of Law) A call for a cerebral palsy....
Ongoing Zyprexa Documents Fiesta
Posted on September 04, 2008Pharmalot has details; Jim Gottstein (the Alaskan lawyer in the middle of a lot of the document hullabaloo) is seeking to unseal some of the documents as part of his renewed effort to fight Judge Weinstein's injunction, while Lilly objects....
Great White Settles
Posted on September 04, 2008I've had a number of posts about the litigation resulting from the fatal fire at The Station nightclub in Rhode Island during a Great White concert. The band itself has now chipped in, adding about $1 million to a total...
First Set of Merits Briefs in Philip Morris v. Williams III
Posted on September 03, 2008Cal Punitive Damages has posted links to the opening set of merits briefs in Philip Morris v. Williams III. The Court granted review back in June on the first question presented: "Whether, after this Court has adjudicated the merits on...
Expedited Trial Date Sought in Six Flags Kentucky Kingdom Case
Posted on September 02, 2008Over a year ago, Katie Lassiter's feet were severed while riding the Superman: Tower of Power at Six Flags Kentucky Kingdom. As I noted in July, the judge set a trial date in January 2010. The plaintiffs have now requested...
ABA Teleconference on Preemption - Next Tuesday 9/9
Posted on September 02, 2008The American Bar Association is sponsoring a one-hour teleconference on "State Tort Remedies for Consumers: Here Today, Gone Tomorrow? Assessing the Supreme Court Preemption Cases" on Tuesday, September 9th from 3:00 to 4:00 pm EST. In its 2007 Term, the...
Palin on Exxon Shipping v. Baker
Posted on September 02, 2008Senator John McCain's running mate, Alaska Governor Sarah Palin, comments on Exxon Shipping v. Baker, in which the Supreme Court reduced the punitive damages award to $515 million. In the interview (from last June), Palin expressed her "disappointment" in the...
Another Injury in a Restricted Area at a Six Flags
Posted on September 01, 2008This one's at Six Flags Magic Mountain, where a man was hit by the Ninja suspended roller coaster. According to initial reports, it's another situation where a patron was going to retrieve a hat and got over a fairly tall...
NY: Gov. Paterson Suspends Increases in Med Mal Premiums
Posted on August 30, 2008From the Kaiser Network: New York: Gov. David Paterson (D) on Friday enacted a one-year moratorium on medical malpractice insurance rate increases, the New York Post reports. The moratorium, which will last until June 2009, could halt increases of up...
Personal Injury Roundup No. 5 (8/29/2008)
Posted on August 29, 2008Labor Day weekend marks the unofficial end of summer. Down here in the south, we are keeping an eye on Gustav and Hannah as we prepare for our end-of-season cookouts. Reform, Legislation, Policy NAM reviews Senator Biden's voting record on...
Stier on Issue Preclusion in Mass Torts
Posted on August 28, 2008Our Mass Tort Lit Blog colleague, Byron Stier, has posted on Bepress Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts. The piece is essentially part II to Stier's similarly titled article on mass tort class actions. Here...
Sebok on Loser Pays
Posted on August 28, 2008Tony Sebok participated in last week's NewTalk discussion of loser-pays rules. He's now posted a Writ column about both NewTalk and the subject. --BC
Biden & Asbestos
Posted on August 28, 2008Sen. Joe Biden's connections to asbestos plaintiffs' lawyers has gotten a fair bit of attention. Go here to find links to a pretty good sampling of the coverage. --BC
Symeonides on Products Liability Conflicts
Posted on August 27, 2008Symeon C. Symeonides (Williamette) has posted his 2004 Tulane article, "Choice of Law for Products Liability: The 1990s and Beyond," on SSRN. The abstract provides: This Article provides a comprehensive review of product-liability conflicts cases decided by American courts between...
You Think Your Family Has Issues?
Posted on August 26, 2008The WSJ Law Blog reports on a civil suit filed by Blackstone executive David Blitzer against his father-in-law Stuart Ross. According to the Law Blog, "[i]n the civil suit filed Friday ... Blitzer accuses Ross of stealing $195,000 from him....
The FDA's New CBE Rule
Posted on August 25, 2008The FDA issued a new final rule [PDF] relating to "changes being effected" -- i.e., changes that a drug manufacturer can make to its label without advance permission. The focus of the changes is on emphasizing that it relates to...
Big Caffeine?
Posted on August 25, 2008Is "big caffeine" the next "big tobacco"? Timothy Sandefur of Pacific Legal Foundation thinks it is possible, while James Speta (Northwestern) disagrees. LegalNewsline reports. - SBS
Torts at 11:00...
Posted on August 23, 2008Larry Mendte and Alycia Lane co-anchored the evening news for four years on KYW-TV, a CBS affiliate in my former hometown of Philadelphia. The station was gaining on the dominant ABC affiliate when the wheels flew off. Lane was arrested...
Personal Injury Roundup No. 4 (8/22/2008)
Posted on August 22, 2008We had our orientation at WNEC Law this week, and classes start in just a couple of days. And me? I've got my fantasy football draft on Saturday. (And by the way, the commissioner is Christopher Harris of ESPN fantasy...
Epstein on Preemption
Posted on August 21, 2008Over at the Northwestern Colloquy, Richard Epstein has published The Case for Field Preemption of State Laws in Drug Cases. --CJR
Bigfoot Hoax to Trigger Lawsuit
Posted on August 21, 2008A friend, in discussing the fact that the alleged Bigfoot turned out to be a frozen rubber suit, noted that "the bigfoot business seems like a good one to get into, so long as you never claim to discover anything...
Ties Between Physicians and Pharmaceutical Companies
Posted on August 21, 2008CNN has a piece on the relationship between physicians and pharmaceutical companies here. --CJR
Robbennolt on Apologies
Posted on August 21, 2008I continue to be fascinated by the apology movement. I'm about to take a serious look at the literature on apologies/explanations and medical malpractice. Jennifer Robbennolt (Illinois) has recently posted Apologies and Settlement Levers on SSRN. The piece presents empirical...
City, State Settle Station Lawsuit
Posted on August 20, 2008The last two major defendants have settled in the lawsuits arising from the fire at The Station nightclub in West Warwick, Rhode Island, that killed 100 people. Rhode Island and West Warwick have each agreed to pay $10 million, bringing...
Mercury-In-Tuna Class Action Gets Green Light
Posted on August 20, 2008The Legal Intelligencer (via law.com) reports that the Third Circuit has reversed the dismissal of a class action against the manufacturer of Chicken-of-the-Sea brand tuna. The suit alleges that the company failed to warn consumers that excessive tuna consumption could...
Loser Pays: Good or Bad?
Posted on August 20, 2008That's the question addressed in detail at NewTalk.org, with comments from people all over the spectrum. --BC
Welcome back, law students everywhere!
Posted on August 20, 2008Today is the start of orientation at my law school and I assume many others are starting now too. Congratulations! You're (probably) going to (mostly) have fun. If you're a 1L, don't be scared off by the name of this...
Sebok on Public Use of Private Lawyers
Posted on August 19, 2008In last week's Findlaw column, Tony Sebok discussed County of Santa Clara v. Superior Court, which is on appeal to the California Supreme Court regarding whether a public entity may retain private counsel to prosecute a public nuisance abatement action...
Illinois Med-Mal Reforms Headed to IL Supreme Court
Posted on August 19, 2008The St. Louis Post-Dispatch reports that "[a] lawsuit testing the constitutionality of Illinois' medical malpractice reforms is expected to come before the state's Supreme Court this fall ? and with it the very real possibility that the law will be...
A day off
Posted on August 18, 2008I'm traveling with less access than expected. We will return to posting tomorrow, however. --BC
Klein on Comparative Fault and Fraud
Posted on August 16, 2008Andrew Klein (Indiana-Indianapolis) has posted Comparative Fault and Fraud on SSRN. Here is the abstract: The evolution of comparative fault is among this generation's most important tort law developments. Today, nearly every state follows some form of the rule, seeking...
Personal Injury Roundup No. 3 (8/15/2008)
Posted on August 15, 2008Week 3 of the Roundup finds most TortsProfs preparing to return to the classroom. Here's what happened while the syllabi and final footnotes were polished. Reform, Legislation, Policy Attorneys consider a constitutional challenge to Maryland's cap on punitive damages ($650,000...
Accounting & Torts
Posted on August 14, 2008There's a proposal by the Financial Accounting Standards Board to require publicly-traded companies to disclose "estimated costs" of pending litigation. As you can imagine, this is causing some angst among those companies with significant but hard-to-predict exposure who predict that...
Swedloff on Tort Remedies for Medicare Beneficiaries
Posted on August 14, 2008Rick Swedloff (Rutgers-Camden) has posted Can't Settle, Can't Sue: How Congress Stole Tort Remedies from Medicare Beneficiaries on SSRN. Here is the abstract: In 2003, with no debate, Congress amended the Medicare Secondary Payer Act (the "MSP") to make it...
Nancy Grace Suit Proceeding
Posted on August 13, 2008WSJ Law Blog has details of the judge's ruling denying the defendant's motion to dismiss; we posted on the case back in 2006 with the background. --BC
O'Connell & Robinette Publish New Book on Tort Reform
Posted on August 13, 2008Jeffrey O'Connell (Virginia) and TortsProf's Chris Robinette (Widener) have just published A Recipe for Balanced Tort Reform - Early Offers with Swift Settlements: This book begins with detailed and evocative accounts of the workings of several actual personal injury cases...
New Massachusetts Law On Drug Marketing
Posted on August 13, 2008On Sunday, August 10th, Massachusetts Governor Deval Patrick signed Senate Bill 2863, which requires the Massachusetts Department of Public Health to establish a marketing code of conduct for prescription drugs and medical devices. The law takes effect January 1, 2009...
Richard Dreyfus Seeks Punitive Damages Against Dad
Posted on August 12, 2008Cal Punitive Damages notes that Dreyfus has sued his uncle and father for malice and fraud in connection with an unpaid loan, and seeks repayment, interest, and yes, punitive damages. - SBS
Two Legal Malpractice Cases
Posted on August 12, 2008First, the Legal Times (via law.com) reports that a jury awarded $500,000 against DC-based plaintiffs' firm Cohen Millstein for malpractice in an underlying case against a stockbroker. Next up - the Legal Intelligencer (via law.com) reports that a Pennsylvania judge...
Liptak on Partisan Experts
Posted on August 11, 2008Here, focusing more on the criminal side, though it's certainly applicable across the board. The "hot tubbing" approach is particularly interesting. --BC
Lawyers & the Presidential Election
Posted on August 11, 2008Interesting piece in Forbes, noting first the easy theme (lots more lawyer money to Obama than McCain), but also observing that it's slightly more complicated (much of the lawyer money comes from defense firms lawyers who work at predominantly defense...
Cavalier on Punitive Damages In France
Posted on August 09, 2008Georges Cavalier has posted "Punitive Damages and French Public Policy" on SSRN. The abstract provides: When asked whether French law admits punitive damages, Professor Durry, a prominent French academic, responded: "No, No, and No!; three times No! But...
Personal Injury Roundup No. 2 (8/8/2008)
Posted on August 08, 2008We hope to have a "Roundup" category in the near future. In the meantime, however, you can find previous editions of the Roundup by scrolling under the Current Affairs category (in the Topical Archive off to the lower right). Now...
Sebok on "Loss of Chance" Doctrine
Posted on August 08, 2008In this week's Findlaw column, Tony Sebok discusses the Massachusetts Supreme Court's decision holding that the "loss of chance" doctrine is part of that state's common law. Sebok predicts that "the Massachusetts decision will influence other state supreme courts...
Updated (3X): ISO Defendant
Posted on August 07, 2008Time reports that a new website - WhoCanISue.com - will debut next month: The new website plans to help consumers determine whether they actually have a case and help them find an attorney from a list of lawyers who advertise...
Goldberg Moves to Harvard
Posted on August 07, 2008From Brian Leiter: John C.P. Goldberg is moving from Vanderbilt to Harvard. - SBS
Speaking of Funding Bias...
Posted on August 07, 2008David Michaels of SKAPP forwarded me an interesting order I missed the first time around in the welding rod litigation in the Northern District of Ohio. In it, the judge ordered (Welding_rod_funding_order.pdf [PDF]) that both sides disclose the extent of...
More on the "Pharma-Free" Expert List
Posted on August 06, 2008Shannon Brownlee has written a post for Pharmalot describing her views on the list she helped put together of (mostly) pharma-free experts (see various links in last week's roundup). Her bottom line seems fairly reasonable to me: they agree that...
Animal Law Conversation at Slippery Slope
Posted on August 06, 2008Over at The Slippery Slope, Meredith Miller (Touro) discusses animal law with Adam Karp, a Washington (State) animal law lawyer and adjunct professor of animal law at both the University of Washington and Seattle University. Around the half-way point (12...
Becker & Posner on Government Regulation of Fast Food
Posted on August 06, 2008Over at the Becker-Posner Blog, Gary Becker (Chicago) and Judge Richard Posner debate the wisdom of government regulation of fast food, such as New York City's requirement that calories be posted on menus (prior posts here and here). Professor Becker...
Depoorter & DeMot on Technology and Torts
Posted on August 05, 2008"Highly recommended" by Larry Solum - Technology & Torts: A Theory of Memory Costs, Nondurable Precautions and Interference Effects by Ben Depoorter (U Miami) and Jef De Mot (Ghent). The abstract provides: This Article amends an important theory by Mark...
Less Cancer Causing Chemicals in Your Tater Tots
Posted on August 05, 2008Four food manufacturers - Heinz, Frito Lay, Lance and Kettle Foods - have settled a suit by California's attorney general alleging that they violated the Safe Drinking Water and Toxic Enforcement Act by failing to post warnings of the cancer-causing....
More Scruggs Allegations
Posted on August 04, 2008LegalNewsline.com has excerpts from a deposition taken of Dickie Scruggs in which he asserts his Fifth Amendment right not to answer repeatedly. From the questions, taken by an attorney for State Farm, it appears that the company is focusing on...
More on that Allstate Case
Posted on August 03, 2008In the first roundup, I noted the affirmance of a $16 million punitive awards judgment against Allstate. At Overlaywered, Ted has more details arguing against the judgment. --BC
Vars on Med Mal Consent
Posted on August 02, 2008Fredrick Vars (Alabama) has posted Illusory Consent: When an Incapacitated Patient Agrees to Treatment on SSRN. Here is the abstract: Medical treatment requires informed consent, which in turn requires decision making capacity. When a patient with questionable capacity does not...
Updated: AutoAdmit Amended Complaint Coming; Will ID Defendants
Posted on August 01, 2008Details here, with interesting quotes about the import, or not, of the de-anonymizing. The NYT has posted a piece from this Sunday's magazine discussing Internet trolls, including those involved in the AutoAdmit case. --BC
Personal Injury Roundup No. 1 (8/1/2008)
Posted on August 01, 2008Welcome to the first Personal Injury Roundup (and, like Eric, I've no idea whether it should be "round up," "round-up", or "roundup," but let's go with "roundup") on TortsProf. We hope to maintain the quality of his year doing it...
Plaintiff's Verdict in First Mirapex Trial; Second One Already Going
Posted on July 31, 2008So reports Pharmalot. No damages set as yet. --BC
Torts in Missouri Politics
Posted on July 31, 2008For the most part, certainly at the national level, tort issues have not been central to campaigning, at least so far this year. But this ad has been released in a Missouri race, attacking a Republican candidate for the U.S....
Schuck on New Zealand Accident Law
Posted on July 31, 2008Peter Schuck (Yale/NYU) has posted Tort Reform, Kiwi-Style on SSRN. Here is the abstract: American legal scholars and social scientists have long been intrigued by New Zealand's accident compensation system, which essentially abolished common law tort almost 40 years ago...
Six Flags Case Muddles Along
Posted on July 30, 2008It's been a year since Katie Lasitter's feet were severed by the Superman: Tower of Power ride at Six Flags Kentucky Kingdom, and it astonishes me that the case is still going even now, especially after the various revelations since...
CPSC Reform Bill Moves Forward
Posted on July 30, 2008A conference committee has reached an agreement on a bill to reform the Consumer Product Safety Commission (CPSC). The House passed a reform bill in December 2007, and the Senate passed its own measure in March 2008. Differences between the...
Mandatory Country of Origin Labeling
Posted on July 30, 2008Yesterday, U.S. Department of Agriculture issued a new rule requiring meat, fruit, vegetable and nut retailers to notify customers of the food's country of origin. The rule takes effect September 30, 2008. - SBS
The Personal Injury Roundup is Dead! Long Live the Personal Injury Roundup!
Posted on July 29, 2008Most of our readers probably know about the personal injury roundup -- it started and then stopped with Eric Turkewitz, then went to Brooks Schuelke, who announced last week its demise. Well, we're going to take a shot at it...
Updated: List of Pharma-Free Experts Published
Posted on July 29, 2008A few months back, Shannon Brownlee and Jeanne Lenzer wrote on Slate about potential conflicts of interest, addressing doctors who had received funds from pharma talking about SSRIs on public radio. They stated that they'd created a list of pharma-free...
California Supreme Court Accepts Case On Public Use of Private Lawyers
Posted on July 29, 2008The California Supreme Court has accepted review in County of Santa Clara v. Superior Court (S163681). The question presented is whether a public entity may retain private counsel to prosecute a public nuisance abatement action under a contingency fee agreement...
No Punitive Damages for NY Smokers
Posted on July 29, 2008In a decision last week, the New York Appellate Division (First Dept.) held that individual punitive damages claims by NY smokers are barred by the doctrine of res judicata. The court reasoned that the 1998 Master Settlement Agreement with the...
CJD: "Racial prejudice lurks behind the 'tort reform' movement"
Posted on July 28, 2008That's the conclusion of an article in the Washington University Journal of Law & Policy (with a 2007 citation date, but the press release is today). The article is available here [PDF], written by the president of and an attorney...
Zyprexa Protective Order Piece Published
Posted on July 28, 2008It took a bit longer than I expected, but my article, When the Bell Can't be Unrung: Document Leaks and Protective Orders in Mass Tort Litigation, is now out in The Review of Litigation (the article is not online there,...
Mirapex Bellwether Trials Starting
Posted on July 28, 2008The Minneapolis Star Tribune reports that the first of three bellwether trials have started in Minneapolis (in front of my judge), testing the case for the link between Parkinson's/restless leg syndrome drug Mirapex and compulsive gambling. The first cases are...
A.M. Best: Med Mal Leads Captives' Premium Decline
Posted on July 26, 2008From the Wall Street Journal's Market Watch: OLDWICK, N.J., Jul 25, 2008 (BUSINESS WIRE) -- Falling medical malpractice premiums led to a 15% drop in net premiums written between 2006 and 2007 for a composite of captive insurance companies, but...
Granite Countertops: The Next Wave of Tort Suits?
Posted on July 25, 2008Sometimes the first sentence of an article says it all: Plaintiffs lawyers are advertising on the Internet for clients whose granite countertops are emitting high levels of radon. If necessary, the rest of the story from the ABA Journal is...
Massachusetts Accepts Loss of Chance Doctrine
Posted on July 25, 2008On Wednesday, the Massachusetts Supreme Judicial Court acknowledged, for the first time, that the loss of chance doctrine was good law in that jurisdiction: "Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical...
Sharkey on Preemption, Part II
Posted on July 24, 2008The Northwestern University Law Review's Colloquy has just uploaded part II of Cathy Sharkey's essay What Riegel Portends for FDA Preemption of State Law Products Liability Claims. --CJR
Hilden on Defamation Online
Posted on July 24, 2008Julie Hilden's column this week on Writ discusses some advantages held by online news sources in the context of defamation litigation (focused largely on the shallow pockets of bloggers) and suggests some ways that bigger players might achieve similar results...
Sharkey on Preemption
Posted on July 21, 2008This morning, the Northwestern University Law Review's Colloquy posted part I of Cathy Sharkey's What Riegel Portends for FDA Preemption of State Law Products Liability Claims. Part II will be available on Thursday. --CJR
New FDA Dissent Website
Posted on July 21, 2008A very interesting new site, Thoreau-FDA.com, has been launched, purportedly by current and former FDA employees concerned about the operation of the FDA, in particular in drug review, and in particular about directives from "upper management." The domain is registered...
Kaiser Family Foundation on Candidates' Healthcare Proposals
Posted on July 21, 2008The Kaiser Family Foundation, through its Health08.org website, has posted [PDF] a side-by-side comparison of the presidential candidates' proposals for healthcare policy. Sen. McCain cites "tort reform" as a way to reduce costs. On a fairly cursory review of the...
Privacy Suit for Taping Sex
Posted on July 19, 2008In May, I discussed a potential privacy claim (in the abstract) based on surreptitious taping of consensual sex. Now suit has been filed, alleging not only invasion of privacy but infliction of emotional distress. Stay tuned. --CJR
Perry on Economic Loss
Posted on July 18, 2008Ronen Perry (Haifa/NYU) has posted The Economic Bias in Tort Law on SSRN. Here is the abstract: Economic loss is moving to the forefront of tort discourse on both sides of the Atlantic. A Council draft of the Restatement (Third)...
NC Scales Back Med Mal Payment Disclosure
Posted on July 17, 2008Yesterday the North Carolina Medical Board voted to scale back its public disclosure of medical malpractice payments by physicians. The Board decided to post only those payments in excess of $25,000, and also limited the time frame for disclosure. Rather...
And with that, a surgeon's insurer's head explodes
Posted on July 16, 2008Just imagine your day if you are the insurer for Steven Kirshner, an orthopedic surgeon. You're filing through the complaints filed against your various insureds -- malpractice, failure to diagnose, failure to treat properly, and...huh? Putting a temporary tattoo of...
"No One To Sue" In Salmonella Outbreak
Posted on July 16, 2008The WSJ Law Blog recently interviewed Bill Marler, a partner at the six lawyer MarlerClark - "a practice dedicated to representing victims of food poisoning," about the salmonella outbreak. Marler reported that his firm did have a few salmonella clients,...
Hezbollah Victims Sue Banks
Posted on July 16, 2008Victims of a 2006 Hezbollah rocket attack in Israel filed suit last week in New York state court against American Express Bank Ltd. and the Lebanese-Canadian Bank SAL. The suit alleges that the banks aided and abetted the attack by...
Sebok on Rhode Island Lead Paint Decision
Posted on July 15, 2008In last week's Writ column, Tony Sebok (Cardozo) analyzed the Rhode Island Supreme Court's decision rejecting the State's public nuisance claim against the lead paint industry. (Prior post here). Sebok calls the decision "a model of common law reasoning," and...
The Slippery Slope - A Legal Variety Podcast
Posted on July 15, 2008Technically, this post is not torts-related, though the name of this new blog sure sounds like it could be.... Check out The Slippery Slope, "a legal variety podcast" by Professor Meredith Miller (Touro). The podcasts do not focus on any...
Same Sex Partner Can't Sue for Med Mal
Posted on July 14, 2008Cynthia Kalish married her partner as soon as it was legally permitted in Massachusetts, but the Massachusetts SJC ruled that she can't be a plaintiff in a med mal suit related to injuries prior to the marriage. The Boston Globe...
Markel on Colby on Philip Morris
Posted on July 11, 2008Tom Colby (GW) is provoking reactions all over the blogosphere this morning. Over at Prawfs, Dan Markel (Florida State) is discussing his latest punitive damages piece in a post entitled "Revisiting Cost Internalization and Punitive Damages after Philip Morris...
Empirical Studies of Civil Liability at Northwestern
Posted on July 10, 2008The Searle Center on Law, Regulation, and Economic Growth presents a Research Symposium on Empirical Studies of Civil Liability which will be held at Northwestern University School of Law, Thursday, October 9th-Friday, October 10th, 2008. This symposium brings together leading...
Solomon at Prawfsblawg
Posted on July 09, 2008TortsProf Jason Solomon (Georgia) is guest-blogging at Prawfsblawg this month. His first two (non-torts-related) posts are here and here. UPDATE: A third post in the series on the U.S. News rankings went up this morning. --CJR
Ordered Chicken, Got Shellfish, Died
Posted on July 08, 2008So reports Consumerist (itself linking to an AJC story). The customer, a Georgia rapper, ordered the Chicken Fresco but got the Chicken Oscar (relevant part of the Ruby Tuesday menu is here, but without pictures, so I don't know how...
Calnan on Duty
Posted on July 08, 2008Alan Calnan (Southwestern) has posted an interesting tort theory piece, Duty and Integrity in Tort Law, on SSRN. Here is the first paragraph of the abstract: The tort concept of duty lacks integrity in virtually every popular sense of that...
Meat & Illness
Posted on July 06, 2008The tomato produce salmonella outbreak has gotten the most attention recently. But the Washington Post's Checkout blog has an interesting bit about Nebraska Beef, a recent 5.3 million pound recall of ground beef, and the company's history of litigation...
Ferris Wheel Incident at Hersheypark
Posted on July 05, 2008In honor of Bill's amusement park specialty, here is a "near-miss" incident at our local favorite, Hersheypark, from last week. The article's first paragraph: A Ferris wheel rider in Hersheypark Saturday evening didn't like the conversation he was having with...
Happy Independence Day
Posted on July 04, 2008What a country! (As the late Tim Russert would have said.) --CJR
Baker, Kritzer, & Vidmar on Jackpot Justice
Posted on July 04, 2008Tom Baker (Connecticut/Penn), Herbert Kritzer (William Mitchell), and Neil Vidmar (Duke) have posted Jackpot Justice and the American Tort System: Thinking Beyond Junk Science on SSRN. Here is the abstract: In 2007 the Pacific Research Institute released a report, "Jackpot...
Hanson & McCann on Situationist Torts
Posted on July 03, 2008Jon Hanson (Harvard) and Michael McCann (Boston College) have posted Situationist Torts on SSRN. Here is the abstract: This Article calls for a situationist approach to teaching law, particularly tort law. This new approach would begin by rejecting the dominant,...
Updated: Updates on Six Flags Over Georgia
Posted on July 02, 2008Couple of things: The park is being required to enhance its signage and fencing around the ride; officials seemed to emphasize, however, that they considered the prior fencing and signage to be adequate. The new signs have to include the...
Lead Paint Manufacturers Win in Rhode Island
Posted on July 02, 2008Yesterday, the Rhode Island Supreme Court rejected the State's public nuisance claim against the lead paint industry. A copy of the decision is available here [large pdf]. Beck & Herrmann provide a thorough analysis of the decision while Ted Frank...
Sebok on Exxon Decision
Posted on July 02, 2008In his latest FindLaw column, Tony Sebok discusses the Supreme Court's punitive damages decision, Exxon v. Baker. Sebok points out that the Ninth Circuit's punitive to compensatory ratio was already within the presumptive "single digit" ratio set by State Farm...
Please Disregard That "We're Not Blaming the Park" Thing
Posted on July 01, 2008The family of the young man killed at Six Flags Over Georgia had said pretty emphatically that they weren't blaming the park (here ("All we know is that we don't blame anybody."). But, well, now they've got a lawyer: "Attorney...
First Amendment Precludes Tort Claim for Emotional Distress Caused by Exorcism
Posted on July 01, 2008Last week, in Pleasant Glade Assembly of God v. Schubert [pdf], the Texas Supreme Court held that the First Amendment precluded a claim for intentional infliction of emotional distress and mental anguish by a young woman who suffered post traumatic...
Please Do Not Place the Sharp Pointy Thing In Your Eye Socket, Thanks
Posted on July 01, 2008Speaking of potential overwarning at amusement parks (well, Ted was, anyway), I snapped this shot at the wonderful Holiday World amusement park in Santa Claus, Indiana. This is outside the Voyage roller coaster (which, I proudly note, my nine-year-old daughter...
ALI-ABA Webcast on Exxon
Posted on July 01, 2008ALI-ABA is presenting a webcast/telephone seminar on Exxon: The Supreme Court Rules on Preemption and Punitive Damages on Thursday July 17th from 12pm to 1pm (EST). Panelists include Andy Frey (Mayer Brown), Professor Alexandra Klass (Minnesota), and Professor Jeffrey Stempel...
Abu Ghraib Detainees Sue Contractors
Posted on June 30, 2008Former prisoners at Abu Ghraib have sued contractors for alleged torture. They're represented by the Center for Constitutional Rights, which has the complaints posted along with a press release. --BC
Update on Six Flags Story
Posted on June 29, 2008Today's reports suggest that the boy had left the park and was attempting to get back in without going to the front gate. His father says that they expect to have their own investigation, but that they "are not blaming...
Decapitation at Six Flags Over Georgia
Posted on June 28, 2008Details are minimal as yet, but a boy was evidently decapitated at Six Flags Over Georgia. Reports indicate that a group of boys jumped a fence near the park's Batman coaster (an inverted coaster; see RCDB) and the boy was...
Torts in Children's Entertainment
Posted on June 28, 2008The Incredibles came out before I started doing this blog (but Overlaywered noted its lawsuits-putting-superheroes-out-of-business premise). But another bit of kids' entertainment made me wonder what else is out there. I just completed a three-day drive to Arkansas; on the...
Colby on Philip Morris v. Williams
Posted on June 28, 2008Thomas Colby (George Washington) has posted on SSRN Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages (forthcoming Yale Law Journal). Here is the abstract: In Philip Morris v. Williams, the Supreme Court...
Chaperone Liability?
Posted on June 27, 2008Our local paper, The Patriot-News, ran an article this morning about liability for volunteers on school field trips. Apparently every school district in our area has coverage for such volunteers, and there is at least one arbitration ruling lately that...
Lytton at Prawfsblawg
Posted on June 27, 2008TortsProf Timothy Lytton (Albany) has been blogging at Prawfsblawg. His posts are here and here. --CJR
Exxon and Punitive Damages Research
Posted on June 26, 2008Over at Concurring Opinions, Dave Hoffman has started a discussion about the Court's refusal in yesterday's opinion to rely on some punitive damages research because it was funded in part by Exxon. --CJR
Supreme Court Reduces Exxon Valdez Punitives to $500M
Posted on June 25, 2008In a 5-3 ruling, the Supreme Court decided the Exxon Valdez [pdf] punitive damages case today. (Justice Alito did not participate in the decision). The majority opinion was authored by Justice Souter. The Court found the punitive damages award excessive...
NYC Questions 9/11 Worker Symptoms
Posted on June 25, 2008The NYTimes reports today that the city of New York is taking an aggressive approach to the 9/11 workers who allege health issues: The city?s review, based on medical records submitted in federal court by the workers and their lawyers,...
"The Plastic Bag with Candy Coating on the Inside!"
Posted on June 24, 2008Woot's very funny blog today has a list of "12 New Products From The People Who Brought You Lego Fun Snacks. Among them: "NASCAR Racing Scissors: the faster you run, the bigger the fun." --BC
Connecticut Upholds Application of Learned Intermediary Doctrine to Medical Devices
Posted on June 24, 2008Beck & Herrmann have a thorough summary of Breen v. Synthes-Stratec, Inc., No. AC 28215, 2008 Conn. App. LEXIS 261 (Conn. Ct. App. May 27, 2008), in which the Connecticut Court of Appeals upheld the application of the learned intermediary...
New York's "Doctor Discipline" Bill
Posted on June 24, 2008NY Newsday reports on the latest political skirmishes in New York on efforts to reform New York's medical disciplinary system. According to Newsday, "state Republican lawmakers said they want to address not only disciplinary matters but also rising malpractice insurance...
Journal of Legal Studies on Malpractice Reforms
Posted on June 23, 2008Ron Miller has an interesting post about a 2007 article in the Journal of Legal Studies' symposium supplement. As Miller sees it, the study has some good and some bad for folks on all sides. --BC
No Exxon Valdez Opinion
Posted on June 23, 2008Order list here [PDF]. --BC (Note: I initially said "no Exxon Valdez cert." Obviously wasn't awake yet. Cert was granted last fall.
"Doubt Is Their Product"
Posted on June 23, 2008I don't think we've yet linked to David Michaels's book Doubt Is Their Product (reviews and such here, David's chat at FireDogLake here). I haven't yet read the book (coughcoughreviewcopy?coughcough), but it is on my summer list. According to the...
"To the Trenches" - NYT on Tort Reform
Posted on June 22, 2008The NYT today has a piece about tort reform today and the ongoing lobbying battles. --BC
Potential Torts Openings?
Posted on June 21, 2008In the same vein as Sheila's post yesterday, Prawfsblawg has a list of hiring chairs for 2008-09. Although many schools are not specific about their needs at this point, Wisconsin and Berkeley specifically list Torts as an area of interest....
Torts Opening at Southern Illinois
Posted on June 20, 2008From the Puerto Rican Bar Association of Illinois: Southern Illinois University School of Law seeks to hire an Assistant or Associate Professor of Law to teach Torts, Advanced Torts, and other courses to be negotiated. Title & Rank: Assistant or...
Directorship's Boardroom Guide to State Litigation Climates
Posted on June 20, 2008The Directorship has released its second annual Boardroom Guide to State Litigation Climates. (PDF version also available). According to the Guide: Directorship?s Best and Worst States for Business The 10 Best 1. Tennessee 2. Utah 3. Indiana 4. Ohio 5...
Don't Eat Legos! Unless They're The Yummy Ones!
Posted on June 19, 2008The Laboratorium notes a post on Penny Arcade regarding fruit snacks in the shape of Legos. And yes, they're real, not a clever Photoshop job. Bad idea. --BC
Davis on Liability of Coaches for Pro Athletes' Injuries
Posted on June 19, 2008More sports and torts! Timothy Davis (Wake Forest) has uploaded Tort Liability of Coaches for Injuries to Professional Athletes: Overcoming Policy and Doctrinal Barriers to SSRN. Here's the abstract: The resolution of seemingly straightforward disputes that arise in sports often...
Crimtorts Symposium Issue
Posted on June 18, 2008The Crimtorts symposium issue of the Widener Law Journal is rolling off the presses. The articles are available below: Christopher J. Robinette, Introduction (Available through SSRN) Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives Download simons_symposium_pp_719732...
"Putting Duty In Its Place": Esper & Keating Reply to Goldberg & Zipursky
Posted on June 17, 2008Dilan Esper (Stein & Flugge LLP) and Gregory C. Keating (USC) have posted "Putting Duty In Its Place: A Reply to Professors Goldberg and Zipursky" on SSRN. The abstract provides: In Abusing 'Duty' we argued that California courts have been...
Federalist Society Talk on Alien Tort Claims Act
Posted on June 17, 2008The New York City Lawyers Chapter of the Federalist Society is sponsoring "What Corporate Acts Create Exposure for International Law Violations?" on Wednesday June 25th at the Cornell Club in NYC. Speakers include Richard L. Herz, Litigation Coordinator, NGO Earthrights...
Judge Permits Discovery of Anonymous AutoAdmit Poster
Posted on June 16, 2008Two Yale law students have sued various posters at AutoAdmit for defamation and other torts. One of them, "AK47," sought permission to proceed anonymously and to quash (based on free speech grounds) a subpoena seeking his identity. The trial court...
Center for American Progress on Malpractice Reform
Posted on June 16, 2008The Center for American Progress has a number of articles recently posted about malpractice liability, insurance, and so on. It's all in the context of health care reform more generally, and worth a read. --BC
Prosser and Campaign 2008
Posted on June 15, 2008"Prosser on Torts" has made an appearance in the election campaign here. --CJR
Nevada: More Disclosure of Malpractice Information
Posted on June 14, 2008Yesterday the Nevada Board of Medical Examiners decided to expand the information about physicians available on its website. Currently the website lists the names of physicians who have been disciplined and the nature of the infraction. In the wake of...
Another Settlement in Rhode Island Club Fire
Posted on June 14, 2008This time it's $25 million from Sealed Air Corp., whose polyethylene foam may have been used in the building. Sealed Air says that their packaging material was misused as soundproofing -- and contends that the plaintiffs didn't even have evidence...
What Happened to the Prosser Notebook?
Posted on June 13, 2008You may remember that back in November and December I wrote a series of posts about a notebook one of my students loaned me. It was his grandfather's Torts notebook from the 1938-39 academic year at the University of Minnesota....
Chandler's Computer Models of Negligence
Posted on June 12, 2008Back in January at AALS, I ran into Professor Seth Chandler (Houston) presenting a poster on computer models of negligence. Chandler's models (or "demonstrations") are available at the Wolfram Demonstrations Project. To run them, you must download Mathematica Player, but...
Another Intamin Ride Cable Snaps
Posted on June 11, 2008Details are a little sketchy, but RideAccidents.com has photos of the Intamin drop ride in Spain with a cable snapped. It appears that the ride operator hit the emergency stop button in time to prevent any injuries. The ride design...
Two New Class Actions Based on Restaurant Menus
Posted on June 11, 2008The National Law Journal (via law.com) reports on two new class actions filed against several nationwide restaurant chains alleging that their menus misrepresent the nutritional content of various items: The lawsuits also allege that much of the menus' nutrition information...
Does Fido Have to Prove Reliance?
Posted on June 11, 2008According to the Daily Business Review (via law.com), a new type of class action has been filed against various pet food manufacturers: false advertising claims. The suit filed in federal court in Miami alleges that pet manufacturers falsely advertise when...
9th Circuit Appoints Special Prosecutor To Determine Attorney Discipline in Nicaraguan Pesticide Case
Posted on June 10, 2008The Recorder (via Law.com) reports that the United States Court of Appeals for the Ninth Circuit has appointed a special prosecutor to determine sanctions for two Los Angelese attorneys' conduct in the Nicaraguan pesticide cases. Thomas Girardi and Walter Lack...
Kia Liable for $6M for Brake Defects
Posted on June 10, 2008PennLive (via AP) reports that a New Jersey jury has found Kia liable for a defective brake system in its 1995 to 2001 Kia Sephia, and has awarded $6 million to a class of New Jersey purchasers. (Details from this...
Cert Granted in Williams v. Philip Morris
Posted on June 09, 2008SCOTUSBlog is liveblogging today's orders and opinions and reports that the Court granted cert. in the Williams v. Philip Morris case. You can browse our damages category for many posts about Williams and other punitive damages cases. A later post...
Lawsuit Filed By Theme Park Actor Shot By Coworker
Posted on June 06, 2008Wild West City, located in the wild west lands of New Jersey, "recreates 1880s life in Dodge City, Kansas," complete with shootouts. A couple of years ago, Scott Harris, an actor/stuntman at the park, was playing a part in one...
Sebok Interview on Public Nuisance
Posted on June 06, 2008Over at Law And More, Jane Genova interviews Cardozo prof and FindLaw columnist Tony Sebok on his views on the Rhode Island lead paint case and public nuisance generally. (Via PointofLaw) - SBS
Third Time's The Charm or Three Strikes & You're Out?
Posted on June 06, 2008We are still waiting for the Court's decision on the cert petition in Philip Morris v. Williams, the Oregon punitive damages case upholding a 100 to 1 ratio despite remand from the U.S. Supreme Court. The petition has been punted...
Can the Spirit be Allocated Some Fault?
Posted on June 05, 2008Here's one to store away in your exam folder. The Smoking Gun reports on the case of Matthew Lincoln, who is suing Lakewind Church for injuries he suffered during a service. At the service, hosted by a visiting minister, parishioners...
Top 10 Recent Torts Downloads on SSRN
Posted on June 05, 2008Rank Downloads Paper Title 1 163 Ten Half-Truths About Tort Law John C.P. Goldberg, Vanderbilt University - School of Law, Date posted to database: April 21, 2008 Last Revised: April 21, 2008 2 139 Jefferson Meets Coase: Land-Use Torts, Law...
Sebok on Rhode Island Lead Paint Case - Part II
Posted on June 04, 2008In his latest Findlaw column, Tony Sebok concludes his two-part series on the lead paint nuisance suits filed by the State of Rhode Island against the lead paint industry. Sebok focuses on two issues: (1) "why, contrary to the impression...
"Mass Torts Made Perfect"
Posted on June 04, 2008Forbes reports on "Mass Torts Made Perfect," a "recent confab of plaintiff lawyers in Las Vegas." "Conference tickets costing up to $1,395 were sold to 315 lawyers and paralegals." The next conference will be held in October at the Bellagio...
Kentucky Kingdom: "Lessons Learned"
Posted on June 03, 2008Kathy Fackler of SaferParks.org has an editorial about what she sees as the lessons learned from the Six Flags Kentucky Kingdom accident and the regulatory implications. Even if you're not interested in amusement safety as such, it's a good example...
Gottstein "Wouldn't Do It Again."
Posted on June 03, 2008James Gottstein, who was part of the conduit of documents from David Egilman to the NYT and others, did an interview with Pharmalot, and says he was just dumb (his word), not intentionally violating a protective order. I have a...
Lytton on Clergy Abuse Litigation
Posted on June 03, 2008Professor Timothy Lytton (Albany) has published Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008), available here. The abstract (from SSRN) reads: The sexual abuse of children by Catholic clergy is arguably...
More on "Medical Apologies"
Posted on June 03, 2008The "medical apology" has received a lot of attention lately. Yesterday at Overlawyered, Walter Olson quoted from this column by Michael O'Hare. Twenty-five years ago, O'Hare worked on a Massachusetts state commission charged with addressing medical malpractice...
Some Summer Reading
Posted on June 02, 2008Sometime in the next few weeks, we'll hear the most recent ruling in the Exxon Valdez case. Want to seem really cool/mildly pathetic at your next summer party? Get up to speed on it thanks to the ScotusWiki. Good times....
Medical Malpractice Payment Disclosure in NC
Posted on May 31, 2008The Raleigh News & Observer reports a controversy between the state medical board, which wants to provide limited information about medical malpractice payments online, and many physicians, who oppose the idea. --CJR
Kentucky Agriculture Department Issues Report on Tower Ride
Posted on May 30, 2008Nearly a year after the original incident, the Kentucky Department of Agriculture has released a report [PDF] summarizing its investigation. Some quick initial reactions: The overall conclusion is that the agency can't pinpoint a single cause, but they focus on...
Blackwater's Suit Against Wiley Rein Dismissed
Posted on May 30, 2008So says the Legal Times in this article. Bill has posted on this case on numerous occasions, the most recent of which is here (this post itself has further links). --CJR
Torts in the 100 Most Creative Moments in American Law
Posted on May 30, 2008Robert F. Blomquist (Valparaiso) has posted Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law. For the methodology and the entire list, the paper (pdf) is here. Some of the moments on the list affect...
How Tort Reform Affects Insurance Markets
Posted on May 30, 2008Martin Grace (Georgia State-Insurance) & J. Tyler Leverty (Iowa-Business) have conducted a study entitled How Tort Reform Affects Insurance Markets (pdf). Here is the abstract: A critique of tort reform is that promised declines in insurance prices do not follow...
150K: Thanks.
Posted on May 29, 2008Sometime in the last week or so, we hit our 150,000th visitor (we're over 220,000 page views) since January 2006, when the blog was launched. Thanks to all of you for visiting and to Sheila and Chris for joining the...
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