Torts Commons^™

Vaccines And The Law, Michael Sanzo Ph.D.

Pepperdine Law Review

The last twenty years have seen a sea-change in the area of proving causation in the toxic tort setting, with courts demanding stronger, scientifically tested evidence. At the same time, a closely related debate has been raging about separating cause from coincidence under the National Childhood Vaccine Injury Act compensation program for injuries that might have been the result of vaccinations. The Vaccine Act created a no-fault compensation fund financed by a tax on childhood vaccines to address harms resulting from those vaccines. Unfortunately, Congress gave little direction with regard to the level of causal certainty that would be required …

Misapplication Of The Attorney Malpractice Paradigm To Litigation Services: "Suit Within A Suit" Shortcomings Compel Witness Immunity For Experts, Adam J. Myers Iii

Pepperdine Law Review

No abstract provided.

The Impact Of The Civil Jury On American Tort Law, Michael D. Green

Pepperdine Law Review

This article, a contribution to a symposium on the what American tort law can contribute to the rest of the world expresses skepticism that a considerable swath of U.S. tort law would be of interest to the rest of the world. The thesis is that American tort law has been shaped by the existence of the civil jury, unique to the U.S, and areas of domestic tort law so influenced have no utility internationally. The article catalogues many such areas and discusses several of them.

The Distorted Reality Of Civil Recourse Theory , Alan Calnan

Cleveland State Law Review

In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what they …

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations …

Medical Malpractice And Compensation In South Africa, L. C. Coetzee, Pieter Carstens

Chicago-Kent Law Review

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and "loss of chance," liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and …

Causation In The Fiduciary Realm, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Material Contribution To Justice - Toxic Causation After Resurfice Corp. V. Hanke, Lynda M. Collins, Heather Mcleod-Kilmurray

Osgoode Hall Law Journal

The vast universe of chemicals in the Canadian environment is presently understood only poorly by science. For many thousands of chemicals, important data regarding chronic toxicity are lacking. As a result, the requirement that the plaintiff in a negligence action prove causation of illness on a but-for standard has frequently been unattainable. In Resurfice Corp. v. Hanke, the Supreme Court of Canada articulated an important exception to the but-for test. In circumstances where but-for causation is unprovable due to limits in scientific knowledge, proof that a defendant materially contributed to the plaintiff's risk of incurring the type of injury that …

Res Ipsa Loquitur In The Restatement (Third) Of Torts: Liability Based Upon Naked Statistics Rather Than Real Evidence, Daniel J. Pylman

Chicago-Kent Law Review

Using the doctrine of res ipsa loquitur, courts have accounted for the fact that there may be instances where a plaintiff is unable to present any evidence of a specific negligent act or omission and yet where the injury to the plaintiff and the surrounding circumstances suggest that the defendant did in fact negligently cause the injury. Despite the fact that the doctrine of res ipsa has been well-accepted by American courts, the courts have struggled to appropriately formulate the doctrine so as to achieve its important purpose of allowing recovery in appropriate situations while not formulating it so …

Choices Should Have Consequences: Failure To Vaccinate, Harm To Others, And Civil Liability, Douglas S. Diekema

Michigan Law Review First Impressions

A parent’s decision not to vaccinate a child may place others at risk if the child becomes infected and exposes others to the disease. Should an individual harmed by an infection transmitted from a child whose parents chose to forgo vaccination have a negligence claim against those parents? While I do not hold a legal degree and therefore cannot speak directly to issues of law, as a physician and ethicist it seems to me that the basic elements that comprise negligence claims—harm, duty, breach of duty, and causation—are met in some cases where parents forgo vaccination.

All Bark And No Bite: A Modern Evidentiary Argument For The Retirement Of The Age-Old Pennsylvania Rule, Bin Wang

William & Mary Law Review

No abstract provided.

Against Genetic Exceptionalism: An Argument In Favor Of The Viability Of Preconception Genetic Torts, Daniel S. Goldberg

Journal of Health Care Law and Policy

No abstract provided.

The Death Of Causation: Mass Products Torts' Incomplete Incorporation Of Social Welfare Principles, Donald G. Gifford

Faculty Scholarship

Legal actions against the manufacturers of disease-causing products, such as cigarettes and asbestos insulation, have redefined the landscape of tort liability during the past generation. These actions bedevil courts, because any particular victim often is unable to identify the manufacturer whose product caused her harm. Increasingly, but inconsistently, courts allow victims to recover without proof of individualized causation. This article argues that instrumental approaches seek to turn mass products tort law into the equivalent of a social welfare program, not unlike workers’ compensation or Social Security. As with any such program, the accident compensation system must include compensation entitlement boundaries, …

Insufficient Causes, David A. Fischer

Faculty Publications

This article analyzes a difficult causation question. If a force is not independently sufficient to bring about an injury, under what circumstances should a court find the force to be a cause of the injury? The question has practical importance. It frequently arises in litigation involving toxic torts and products liability failure to warn. The article includes a critique of the NESS test of causation as it pertains to this issue. This article explores this weakness of the NESS test in the context of insufficient causes, and offers important new insights with respect to the limitations of the NESS test. …

Market Share Liability Beyond Des Cases: The Solution To The Causation Dilemma In Lead Paint Litigation?, Donald G. Gifford, Paolo Pasicolan

Faculty Scholarship

Over 300,000 young children in America—disproportionately poor and children of color—suffer from childhood lead poisoning. This disease ordinarily is caused by the deterioration of lead paint into flakes, chips, and dust that children ingest or inhale. Victims of childhood lead poisoning have tried to sue manufacturers of lead paint or lead pigment, but they face a seemingly insurmountable obstacle. Traditional tort law requires a plaintiff to prove that a specific tortfeasor caused the harm. This is almost impossible in the lead paint context because the paint that caused the harm usually consists of many layers, applied over the course of …

Civil Rights Injunctions Over Time: A Case Study Of Jail And Prison Court Orders, Margo Schlanger

Articles

Lawyers obtained the first federal court orders governing prison and jail conditions in the 1960s. This and other types of civil rights injunctive practice flourished in the 1970s and early 1980s. But a conventional wisdom has developed that such institutional reform litigation peaked long ago and is now moribund. This Article's longitudinal account of jail and prison court-order litigation establishes that, to the contrary, correctional court-order litigation did not decline in the late 1980s and early 1990s. Rather, there was essential continuity from the early 1980s until1996, when enactment of the Prison Litigation Reform Act (PLRA) reduced both the stock …

Uncertainty And Informed Choice: Unmasking Daubert, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

This Article will first examine why it is that plaintiffs have been unable to prove causation under the Daubert guidelines in toxic tort litigation. Second, it will look at the two existing models for informed choice litigation medical malpractice and products liability-and demonstrate why neither of these models gives toxic tort plaintiffs a fair opportunity to recover for the deprivation of patient autonomy against drug manufacturers who have breached their duty to warn of known or knowable risks. Finally, this Article will explore the elements of a causation-free informed choice cause of action. It will suggest the appropriate standard for …

The Challenge To The Individual Causation Requirement In Mass Products Torts, Donald G. Gifford

Washington and Lee Law Review

No abstract provided.

The Challenge To The Individual Causation Requirement In Mass Products Torts, Donald G. Gifford

Faculty Scholarship

This article uses the example of mass products torts to test the traditional principle that requires a specific victim to prove that a particular injurer caused her harm in order to establish tort liability. Proponents of the instrumentalist conception of torts, notably those identified with law and economics such as Calabresi and Posner, view any requirement of individualized causation as “old-fashioned” and inconsistent with their goals of achieving loss minimization and loss distribution or wealth maximization. In contrast, corrective justice theorists, such as Ernest Weinrib, argue that particularized causation is intrinsic to the entire notion of tort liability. The judicial …

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Faculty Publications

No abstract provided.

Insufficient Causes, David A. Fischer

Kentucky Law Journal

No abstract provided.

Tell Me What You Eat, And I Will Tell Whom To Sue: Big Trouble Ahead For “Big Food"?, Richard C. Ausness

Law Faculty Scholarly Articles

Overweight consumers are seeking damages from purveyors of fast food for obesity-related health problems. Plaintiffs claim that products that are high in fat, sugar, salt and cholesterol are defective. Other potential liability theories include product category liability, failure to warn, failure to disclose nutritional information, deceptive advertising, and negligent marketing. However, in order to prevail at trial, plaintiffs must overcome problems with causation, duty and proximate cause, shifting responsibility, federal preemption, comparative fault, and assumption of risk. If such litigation is successful, it may induce fast-food companies to produce healthier products. Nevertheless, this Article concludes that the problem of obesity, …

Scienter, Causation, And Harm In Freedom Of Expression Analysis: The Right Hand Side Of The Constitutional Calculus, Wilson Huhn

William & Mary Bill of Rights Journal

No abstract provided.

Causation And Attenuation In The Slavery Reparations Debate, Kaimipono D. Wenger

ExpressO

Recent discussions of reparations have noted the difficulty reparations advocates have in showing causation. Criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that modern disadvantages cannot be connected to slavery.

This Article examines attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments. They have important strategic consequences, and …

A Faith-Based Perspective On Tort Causation, Douglas H. Cook

St. Thomas Law Review

Causation is among the more difficult concepts dealt with in the law of torts. "There is perhaps nothing in the entire field of law which has called forth more disagreement .... Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the best approach."' The law has, however, settled into at least a few basic concepts. There is general agreement that a defendant's act will not be regarded as a cause of a plaintiffs harm unless it is true that "but for" the defendant's conduct, the plaintiff would not …

The Application Of Finance Theory To Increased Risk Harms In Toxic Tort Litigation, Robert J. Rhee

UF Law Faculty Publications

In toxic tort litigation, a plaintiff has no cause of action for increased risk of harm unless that risk is proven by a preponderance of the evidence to lead to a future physical injury. This rule of law is based on an antiquated concept of uncertainty, and evinces the law's detachment from the knowledge gained from other intellectual disciplines and the everyday workings of the world. This article argues that freedom from increased risk should be a legally cognizable interest, the violation of which gives rise to an independent cause of action. When analyzed under finance theory, increased risk harms …

Tort Liability For The Sale Of Non-Defective Products: An Analysis And Critique Of The Concept Of Negligent Marketing, Richard C. Ausness

Law Faculty Scholarly Articles

This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.

Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category …

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter Nash Swisher

Nevada Law Journal

No abstract provided.

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter N. Swisher

Law Faculty Publications

In all of Anglo-American law, there is no concept that has been as been so pervasive - and yet so elusive - as the causation requirement; and even today this causation requirement in American law has resisted all efforts to reduce it to a useful, understandable, and comprehensive formula regarding its underlying nature, content, scope, and significance. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of the law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than legal …

Tort Recovery For Loss Of A Chance, David A. Fischer

Faculty Publications

Tort lawyers in the United States often think of “loss of a chance” as a theory of “probabilistic causation” that only applies to medical malpractice misdiagnosis cases. The theory is that if a physician negligently fails to diagnose a curable disease, and the patient is harmed by the disease, the physician should be liable for causing the “loss of a chance” of a cure. We shall see that if the chance of a cure is less than 50 percent, the plaintiff cannot prove by a preponderance of evidence that the negligence caused the harm, and would recover no damages under …