Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Elkhorn Mining Co., 428 U.S. 1 (1976), the Court upheld the constitutionality of the Black Lung
Benefits Act, which provided benefits to coal miners suffering from black lung disease
(pneumoconiosis). In particular, the Act reduced certain miners’ burden of proof that they
contracted pneumoconiosis from a particular operator’s mine. The respondents challenged two
particular provisions of the Act:
[T]he Operators challenge . . . . the presumptions contained in §§ 411 (c)(1) and (2).
Section 411 (c)(1) provides that a coal miner with 10 years’ employment in the
mines who suffers from pneumoconiosis will be presumed to have contracted the
disease from his employment. Section 411 (c)(2) provides that if a coal miner with
10 years’ employment in the mines dies from a respiratory disease, his death will
be presumed to have been due to pneumoconiosis. Each presumption is explicitly
rebuttable, and the effect of each is simply to shift the burden of going forward with
evidence from the claimant to the operator.
Id. at 27. In response, the Court held:
Id. at 29-30.
The Operators insist . . . that the 10-year presumptions are arbitrary, because they
fail to account for varying degrees of exposure, some of which would pose lesser
dangers than others. We reject this contention. In providing for a shifting of the
burden of going forward to the operators, Congress was no more constrained to
require a preliminary showing of the degree of dust concentration to which a miner
was exposed, a historical fact difficult for the miner to prove, than it was to require
a preliminary showing with respect to all other factors that might bear on the danger
of infection. It is worth repeating that mine employment for 10 years does not serve
by itself to activate any presumption of pneumoconiosis; it simply serves along with
proof of pneumoconiosis under § 411(c)(1) to presumptively establish the cause of
pneumoconiosis, and along with proof of death from a respirable disease under §
411(c)(2) to presumptively establish that death was due to pneumoconiosis. . . . We
certainly cannot say that the presumptions, by excluding other relevant factors,
operate in a “purely arbitrary” manner. . . . Mobile, J & KC R. v. Turnipseed, supra,
at 43.
4. A Note on Settlement Mills
One of the most striking features of contemporary tort practice is the rise of whole areas
of practice in which proof almost never happens. These are the so-called “settlement mills”:
personal injury law firms that achieve speedy recoveries for their clients in the absence of proof,
without ever going to trial. According to Professor Nora Engstrom, some plaintiffs’-side practices
have become a volume business. Settlement mill attorneys handle two hundred to three hundred
open files per day. By getting standardized sums for their clients with virtually no lawyer-client
interaction, the settlement mills radically lower transaction costs. They also substantially reduce
uncertainty for their clients.
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