Schwartz and Silverman, ‘The Rise of “Empty Suit” Litigation. Where Should Tort Law Draw the Line?’

Introduction:
… This Article focuses on four variants of no-injury theories that are either emerging or experiencing a resurgence in the courts: (1) claims for recovery of emotional harm; (2) liability for the estimated costs of medical monitoring following exposure to a potentially harmful substance absent a physical injury; (3) class action litigation claiming that a product’s actual value was lower than the purchase price or that the resale value of a product diminished because of an alleged latent defect, even when the product functioned properly for most or all consumers; and (4) class actions challenging product labeling or advertising on behalf of all consumers where few, if any, of them were actually misled. In each area, the Article reviews applicable tort law principles, examines how plaintiffs have attempted to circumvent or alter the traditional rule to proceed with no-injury lawsuits, and considers the judicial response to such claims. The Article finds that some courts are slowly easing traditional requirements for recovery solely for emotional harm and a new Restatement is likely to advance this process … (more)

Victor E Schwartz and Cary Silverman, ‘The Rise of “Empty Suit” Litigation. Where Should Tort Law Draw the Line?’, Brooklyn Law Review, Volume 80, Issue 3 (2015).

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