Showing posts with label product liability. Show all posts
Showing posts with label product liability. Show all posts

Thursday, February 4, 2021

FDA reg doesn't preempt state medical device liability, but plaintiff must plead 'plausible' theory, Court says

PainDoctorUSA CC BY-SA 4.0
Medical-device liability claims in state courts are not preempted by federal law, the Massachusetts Supreme Judicial Court confirmed Friday, but the plaintiff before the Court failed to meet the pleading standard.

Seeking relief from the pain of osteoarthritis, Plaintiff Dunn received in her knees two injections of "Synvisc-One," a product of defendant Genzyme Corp. and an FDA-approved "Class III medical device," the Court retold.  Subsequently, she "experienced severe side effects, including 'pain and swelling in her knees, difficulty walking, hip bursitis and systemic pseudoseptic acute arthritis," resulting in falls and injuries, including a torn meniscus and broken neck.

The plaintiff sued Genzyme in negligence and product liability and under Massachusetts consumer protection law.  Commonly called "93A," after its codification, the latter theory of unfair or deceptive practices is favored by plaintiffs' lawyers for its allowance of punitive damages upon an up-to-treble multiplier.  Massachusetts allows punitive damages only upon statutory authorization, and 93A is generous, tracking tort liability theories, including product liability, that would not be thought of as statutory consumer protection in other states.

The U.S. Supreme Court ruled in 2008 that state law claims are not necessarily preempted by regulatory approval under the 1976 Medical Device Regulation Act (MDA).  To survive preemption, a plaintiff's claim must parallel, and not exceed, federal regulatory requirements.

Justice Gaziano
Applying the Supreme Court standard, the SJC determined that the plaintiff's claims met the standard.  Specifically, "negligent failure to warn, breach of warranty, negligent manufacture, products liability, and violations of [chapter] 93A—all can be interpreted as coextensive with the comprehensive Federal requirements."

Contrary to implication by the defense, the SJC held that a plaintiff asserting medical-device liability in parallel with the MDA is not required to plead with the high level of particularity (Rule 9(b)) required in fraud.  Rather, the requisite pleading standard is "plausibility": "plaintiffs asserting parallel State-law claims based upon a violation of FDA regulations must articulate only "factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief" (quoting SJC precedent).

Nevertheless, the plaintiff failed to meet that standard.  The complaint alleged foreseeability of "significant dangers," known or reasonably knowable "dangerous propensities," and, as an alternative theory, adulteration or defect of the product.  But the plaintiff alleged no factual support for causation linking the injection to the injury other than "temporal proximity."  Evidence of other complaints about the product would have helped, the Court suggested.  But deficiency of pleading does not entitle a plaintiff to discovery.

Accordingly, the Court reversed the trial court's denial of the defense motion to dismiss.

The case is Dunn v. Genzyme Corp., No. SJC-12904 (Mass. Jan. 29, 2021).  Justice Frank M. Gaziano authored the opinion of the unanimous Court.

Wednesday, November 4, 2020

'Super tort' might represent failure of public policymaking, but is only tip of melting iceberg

First Circuit remands R.I. suit against Big Oil for public nuisance

Super Tort
(pxhere.com CC0)
A "super tort" sounds delicious.  Indeed, the term refers more often to food than to a theory of civil liability.  Maybe that's why the term animated headlines recently when the defense-friendly American Tort Reform Association (ATRA) used it in an amicus brief to the Oklahoma Supreme Court.

In October, ATRA filed its brief on the side of Johnson & Johnson's appeal of a $465m trial verdict of public nuisance liability in the opioid epidemic.  In the brief, ATRA warned that the award represented a "new species of public nuisance [that] will devour all of Oklahoma tort law and, with it, who knows how many businesses."  ATRA explained (my bold):

Since its inception, public nuisance has played a circumscribed role in Oklahoman—indeed, American—jurisprudence. It originated as a property-based tort used to remedy invasions of public lands or shared resources like highways and waterways. The trial court ignored that history, transforming public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability for a broad array of public issues that are far removed from traditional public nuisances.

ATRA further argued its position in terms of the separation of powers, or, classically stated, Aristotelian justice:

The decision will also chill business activity throughout the state for fear that any product linked to a perceived social problem may lead to astronomical and disproportionate liability. It is not the judiciary's role to create a new tort to address social problems. That job belongs to the legislature, which can weigh competing policy factors and study the possible consequences of expanding traditional nuisance law.

Lead paint can
(Thester11 CC BY 3.0)
This isn't the first time ATRA has bemoaned the emergence of a public nuisance "super tort."  Among other tort-reform advocates, defense attorney Phil Goldberg used the term in 2008 and in 2018 to describe lead paint liability.  On the former occasion, echoed in an industry legal brief and in legal scholarship, the Supreme Court of Rhode Island had just rejected industry liability for lead paint on grounds that the defendants had no control over the product at the time it caused harm to children.  An ATRA leader warned of "super tort" in the climate change context as early as 2011 (States News Serv., Apr. 18, 2011 (quoting Tiger Joyce)). (Inapposite here, Patrick O'Callaghan, University College Cork, used the term "super tort" in the Irish Law Times in 2006 to describe potential excess in invasion-of-privacy liability.)

Nevertheless, public nuisance is the leading theory with which the State of Rhode Island now demands that oil companies pay for the past and future consequences of climate change.  Rhode Island alleges theories of product liability and public trust, in addition to public nuisance.  The state's suit is just one of many filed by state and local governments against Big Oil.  The Sabin Center for Climate Change Law, at Columbia Law School, tracks all U.S. litigation on climate change, including the Rhode Island suit

Just last week, the First Circuit remanded the Rhode Island suit to state court, rejecting industry claims of federal preemption.  Meanwhile, the case in state court is on hold while the U.S. Supreme Court ponders the outer constitutional limits of personal jurisdiction.  The Court's ruling in an otherwise unrelated case, which I wrote about in April and the Court heard this fall, has ramifications for Rhode Island's thin assertion of jurisdiction over transnational oil defendants.

Over the summer, I spoke about the expansive approach to public nuisance that resulted in the colossal Oklahoma award against Johnson & Johnson and that leads government claims against Big Oil over climate change.  Corporate objections voiced by ATRA, based in Aristotelian justice, are legitimate.  Ironically, as I discussed briefly in my lecture, I see this resort to the courts as an understandable expression of public frustration with corporate capture of our political branches of government.

The Rhode Island complaint images industry-sponsored public service announcements that sewed doubt about climate change and the role of fossil fuel.

Yet despite my skepticism, as a Rhode Islander and a taxpayer, I find the allegations in the state's 2018 complaint awfully persuasive.  The climate science is neatly summarized with color charts, and I'm a sucker for a color chart.  More dispassionately persuasive of moral responsibility on the part of industry, though, are excerpts of trade association advertising that downplayed, if not mocked, climate change science at a time when the industry must have known better.  The ads are eerily reminiscent of Big Tobacco efforts to downplay the risks of smoking for decades through the selectively scientific work of the Tobacco Institute.  That makes me wonder that product liability and consumer protection might be the states' and localities' best approach, not to mention a more doctrinally conservative strategy, and therefore judicially appealing approach, compared with a no-holds-barred theory of public nuisance—if we must rely on the courts alone, after all.

We might ought worry that "super tort" will devour our rational framework of civil liability.  But rather than reject industry responsibility and liability outright, we should add "super tort" to our lately exploded catalog of reasons to examine how and why our political institutions have failed to protect the environment, public health, and human life.

The case in Rhode Island state court is Rhode Island v. Chevron Corp., No. PC-2018-4716 (Bristol County, R.I. Super. Ct. filed July 2, 2018).  The case in the First Circuit was Rhode Island v. Shell Oil Prod. Co., No. 19-1818 (1st Cir. Oct. 29, 2020).

Sunday, October 4, 2020

'Hidden Brain' tackles Ford Pinto product liability, hindsight bias, inevitable accident

Classic yellow Ford Pinto
(Michael Dorausch CC BY-SA 2.0)
In a two-for-one bonus for torts teachers, Shankar Vedantam at National Public Radio analyzed the Ford Pinto product liability case to the end of understanding hindsight bias and inevitable accident in his podcast, Hidden Brain.  The item includes an interview with Denny Giola, a Ford decision-maker who raised concerns about the Pinto, but at a crucial decision point, voted against recall.

The story is Shankar Vedantam, Cat Schuknecht, Tara Boyle, Rhaina Cohen, & Parth Shah, The Halo Effect: Why It's So Difficult To Understand The Past, Hidden Brain, Sept. 21, 2020.  A real-life Pinto anchors a featured case exhibit at the American Museum of Tort Law.

Monday, April 27, 2020

Product liability, negligence claims underlie Supreme Court cases with jurisdiction, First Amendment issues

Two cases filed in the U.S. Supreme Court arise out of tort claims, if presenting more immediate questions in other doctrinal veins.  Recent media coverage of each offers worthwhile observations.

U.S. Supreme Court denies government bid to argue for corporate jurisdictional defense in product liability case

Historic Ford Motor Assembly Plant in California
(Almonroth CC BY-SA 3.0)
Ford Motor Company v. Montana Eighth Judicial District Court, No. 19-368 (SCOTUSblog), No. 19-368, might be one for the civil procedure casebooks.  It is consolidated with a similar case, Ford Motor Co. v. Bandemer, No. 19-369 (SCOTUSblog).  In Montana Eighth, a Montana driver died after tire treads separated on her Ford Explorer on a state highway.  In Bandemer, the plaintiff-passenger suffered severe brain injury after the airbag failed to deploy in a Ford Crown Victoria that rear-ended a snowplow in Minnesota.  Plaintiffs in both cases sued Ford upon theories including strict product liability and negligence.  Ford sells cars in both Montana and Minnesota, but not these cars; they wound their way to those states through changes in ownership.  Based on that attenuation, Ford contested personal jurisdiction and lost in both state supreme courts.

U.S. S.G. Noel Francisco
Darcy Covert and A.J. Wang for Slate highlighted an interesting development behind the scenes in the Ford cases: The Supreme Court denied a motion by the U.S. Solicitor General to participate in oral argument.  As Covert and Wang observed, the Supreme Court "[f]or roughly the last decade, ... [has] permitted the solicitor general to weigh in on any case he wants."  That permissiveness exaggerated a trend in the waning decades of the 20th century in which the SG intervened in cases with diminishingly credible legitimate federal interest.  The SG's cause for intervention has become more about politics, or even, my words, the realpolitik of corporatocracy, than about interests of federalism or constitutional law.  Witness the Ford cases, in which the SG hardly articulates any credible rationale to thinly veil the executive's alignment with your friendly neighborhood (non-governmental) U.S. Chamber of Commerce to make it that much harder for a consumer plaintiff to sue a manufacturer.

Slate's headline described the Supreme Court's denial as "a small step in the direction of judicial independence."  Let's hope so.

Black Lives Matter petitions U.S. Supreme Court after Fifth Circuit 'bobbled' freedom-of-assembly defense in negligence case

DeRay Mckesson (Jay Godwin, LBJ Library)
Mckesson v. Doe, No. 19-1108 (SCOTUSblog), not yet granted cert., is likely to turn up in a lot of books—it's already rounded the circuit in legal op-eds—because of its rich social dimensions.  But the core legal problem is pretty straightforward in its articulation.  Doe was a police officer severely injured when a Black Lives Matter protest, blocking a Baton Rouge highway, turned violent.  Doe sued DeRay Mckesson for negligence as a protest organizer, alleging that Mckesson reasonably should have foreseen injury-causing violence.  (Mckesson played a collateral role in another First Amendment case, Johnson v. Twitter (Complaint; read more at The Hill), which I talked about at Amity Dubai last summer on the subject of social media-related liability.)

At first blush, the case looks something like one of the entrants in the unsettled First Amendment genre of negligent "inducement to violence."  In one of the earliest such cases in the modern civil rights era, Weirum v. RKO General, Inc., 15 Cal. 3d 41 (1975), a radio DJ induced first arrival at a giveaway point, resulting in a fatal car accident.  For the California Supreme Court, famous Justice Stanley Mosk summarily rejected the DJ's First Amendment defense: "The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act."

Justice Mosk might have been right on those facts, but his unwillingness to recognize a slippery slope had to have been willful ignorance.  The more familiar "clear and present danger" (or "incitement to imminent lawless action") doctrine and the much debated "true threat" doctrine in First Amendment law more plainly demonstrate the same problem.  It's not at all clear that the RKO DJ "inflict[ed]" physical injury, and doesn't the sticks-and-stones maxim posit that that's impossible?  Cf. James 3:6-8.  I've seen many scholars try to tackle the Weirum problem; they've all concluded either that the case was rightly decided but at the extreme of a spectrum, or that it was wrongly decided, despite the DJ's socially objectionable conduct.

Black Lives Matter protest in Baton Rouge, La.
(Antrell Williams CC BY-ND 2.0)
The First Amendment speech-and-assembly activity in Mckesson is more attenuated causally from physical injury than the radio broadcast in Weirum.  More time, space, and independent decision-makers separated defendant-organizer Mckesson from violence against plaintiff-Officer Doe than separated the RKO DJ from his driving listeners.  And in a way that is difficult and hazardous to quantify, if nonetheless important, much greater political value—at the core of First Amendment protection—attaches to the organization of a protest against the government than to a commercial radio promotion.

Mckesson must be free of negligence liability, even if the right path to get there in First Amendment jurisprudence remains to be worked out.  Professor Eugene Volokh in Reason suggested a smart fix in the firefighter rule.  That rule's nuanced underpinning in public policy invites the First Amendment to put a thumb on the scale, and such clever fixes—including legal causation, for foreseeability, itself—have helped to resolved negligent-speech injury cases before—in a Fifth Circuit case in which now-Chief Justice Roberts represented the media defendant.

The view I want to highlight here, though, is that of University of Baltimore Law Professor Garrett Epps in The Atlantic, who attacked the problem more directly through free-assembly precedent grounded firmly in civil rights-era protection of boycotts.  To Epps's view, the "rogue" Fifth Circuit "has had four chances to apply a foundational First Amendment precedent, and has bobbled it each time."  I hope the Supreme Court sees it the same way.


Ford Motor Co. will be scheduled for oral argument in fall 2020.  McKesson is pending cert. consideration this spring; if the petition is granted, the case also will be scheduled for argument in the 2020-21 term.

Thursday, April 2, 2020

Doctor's blog briefs COVID-19, medmal, learned intermediary doctrine, and addiction in legal profession

Like you, likely, I am at home.  And one thing I can tell you about home:  This ain't Rwanda.  Where I was supposed to be.  Apologies in advance to students for the classes I will have to reschedule in upcoming semesters to make up some of my sabbatical research.  Or maybe the university will afford me some bonus away time, compassionately understanding the impact of the crisis.  ROTFL.

So here I sit with some time to catch up on reading, and I want to share some worthwhile items here on the blog.

For starters, I'm terribly excited about what my friend and former student Joseph Grillo, M.D., J.D.-nearly-complete, has been writing over at his eponymous blog.  Here are recent headlines, links, and snippets in reverse chronological order.  Did I mention that Dr. Joe (LinkedIn) is an infectious disease specialist?

You have a look-see, below, while I go refresh my Whole Foods delivery window window.

Or not.



Image by Prawny from Pixabay
Coronavirus Disease 2019 (COVID-19) – The Available Evidence
March 19, 2020

There is currently a large amount of information being circulated on the COVID-19 viral pandemic. Much of it is inaccurate and some is hysteria – often fostered by the mainstream media. In my view, the best way to combat this virus is by having evidence-based information and acting accordingly. There is a significant amount of accurate information currently known, but there is also considerable information that remains unknown at this time. Presented below is a discussion of both. Please feel free to contact me with questions at jfgrillo1@gmail.comRead more.

Image by Gordon Johnson from Pixabay
The Effects of the Affordable Care Act on Medical Malpractice Claims
March 17, 2020

The seemingly interminable debates about the ACA and health care reform in the last few years have focused mainly on health care access, quality, and cost. Debates on the medical malpractice component of the issue have focused almost entirely on cost. The familiar arguments in favor of limiting liability include the financial and health costs of defensive medicine; decreased physician supply in certain specialties and geographic areas; excessive awards; and high transaction costs, including attorney and expert witness fees. The equally familiar arguments in favor of maintaining tort liability include the need to promote civil justice, deter substandard care, identify incompetent practitioners, and encourage systemic quality improvement. There is a complicated and nonlinear relationship between medical malpractice events, medical malpractice claims, and medical malpractice costs. [Footnotes omitted.]  Read more.

Image by Gordon Johnson from Pixabay
Editorial: The Edges of Physician Liability and The Learned Intermediary Doctrine
March 12, 2020

The Learned Intermediary doctrine paints an idyllic picture of patients’ total reliance on their physicians to choose drugs and of physicians choosing drugs that best promote patient welfare. These images, however, are increasingly out of sync with the present-day healthcare system. For instance, managed care and other cost control measures employed by insurance companies have altered the doctor-patient relationship.  Read more.

Image by congerdesign from Pixabay
Suffering in Silence – The Addiction Epidemic in The Legal Profession
March 10, 2020

A recent course required an oral presentation on a topic of our choosing. Unknowingly, I chose to research and present my findings on addiction in the legal profession. What I found is worth expounding. Also worth noting is that these findings were presented to the university administration. Their response was chilling. In short, they claimed to “have this.” I am certain of a few things – they don’t “have this,” that being stagnant is at the heart of the crisis, and the status quo continues – drugs continue to be sold and consumed, and law students are suffering in silence. Therein lies a microcosm of a crisis within the legal profession.  Read more.

Image by Alina Kuptsova from Pixabay
Urgent Care – an Emerging Source of Clients for Medical Malpractice Attorneys
March 4, 2020

Urgent care centers are increasingly becoming Americans’ go-to option for certain health problems according to a study in JAMA Intern Med. 2018. Visits to urgent care clinics increased by 119% among commercially insured Americans between 2008 and 2015During the same time period, emergency room visits for low-severity conditions — like those treated at urgent care centers — decreased by 36%. The reasons for these trends are numerous, including the high costs and long wait times associated with ER visits. While there are certainly benefits to such clinics, there are potential pitfalls for patients.  Read more.

Thursday, November 7, 2019

Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments

Willis Lam CC BY-SA 2.0
Reversing and remanding an order for new trial in a personal injury-product liability case over a $5 Wendy's hamburger, the Massachusetts Appeals Court today issued an opinion on jury argument fit to serve as a teaching tool in trial practice.

Plaintiff's counsel made improper "golden rule" and "reptile" arguments in closing, the Appeals Court concluded.  But the trial court did not fully and fairly assess whether prejudice resulted before rejecting the jury verdict and ordering a new trial.

In 2011, the 34-year-old plaintiff suffered a gruesome dental injury while eating a $5.64 small plain hamburger from the Wendy's fast-food restaurant in Medford, Massachusetts.  Skip this block quote (footnotes omitted) if you don't feel strong in the stomach today.  But if you're into this sort of thing, there's more in the opinion.
On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two. The injury was caused by a piece of bone in the hamburger.
The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed. The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years.
In its 38-page opinion, the court gave a blow-by-blow of the entire trial, just two half-days, from opening to closing arguments with ample quotations.  That rendition in itself is a great teaching tool.

The salient problems arose for the plaintiff in the closing argument.  Long quotes are given in the opinion, but the trial judge summed it up.
[S]he concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought "to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D. Keenan,] Reptile: The 2009 Manual of the Plaintiff's Revolution" (book).
Oddly enough, I just this week read in the ABA Journal about how that Ball & Keenan book is vexing the defense bar.

The court recited the Massachusetts Guide of Evidence, section 1113(b)(3), listing prohibited closing arguments (and tracking multistate norms), and located plaintiff counsel's arguments within paragraphs (C) and (D):
(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;
(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;
(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;
(D) to ask the jurors to put themselves in the position of any person involved in the case;
(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and
(F) to ask the jury to disregard the court's instructions.
Nevertheless, the appeals court faulted the trial judge: "The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation."  When the jury returned a verdict for $150,005.64, the lowest amount suggested by plaintiff's counsel, plus the cost of the hamburger, it came without evidence of prejudice.  The Appeals Court admonished "that a judge is not to 'act merely as a "13th juror" [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts'" (quoting precedent).

At minimum, the trial judge applied the wrong procedural standard, holding over the defense motion for mistrial from before the verdict to after, rather than requiring (or raising sua sponte) and analyzing a motion for new trial after the verdict.  Thus the Appeals Court vacated the new-trial order and remanded for proper consideration.

The case is Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 18-P-1125 (Mass. App. Ct. Nov. 7, 2019).  Wolohojian, Blake, & Shin, JJ., were on the unanimous panel, the Hon. Gabrielle R. Wolohojian writing.  The trial judge was the Hon. Heidi E. Brieger, who teaches adjunct at her alma mater, Boston University Law School.  Matthew J. Fogelman appeared for the plaintiff.  In the 1990s, he was editor-in-chief of the student newspaper Argus at Wesleyan University.  Christopher A. Duggan and Pauline A. Jauquet represented defendants Wendy's and beef producer JBS Souderton, Inc.

Saturday, August 17, 2019

Abraham & White would limit further extension
of First Amendment as tort defense

In a new article, Kenneth S. Abraham and G. Edward White, University of Virginia Law, argue against the further extension of the First Amendment ("imperialism") to constitutionalize tort law when torts are accomplished through speech.  Specifically, they study the First Amendment in defamation, privacy, and IIED before contemplating the First Amendment problems that lurk in fraud, product disparagement, product warning defect, and interference.  The interference problem has interested me since The Insider.  En route to their conclusion, the authors critically examine the truth-falsity dichotomy.  Here is the abstract for First Amendment Imperialism and the Constitutionalization of Tort Liability.
To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples.

If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.
 Hat tip @ TortsProf.

Friday, March 22, 2019

Roundup and other stories: Monsanto, Sandy Hook, Aaron Hernandez, Monica Lewinsky, Summer Zervos, and One Montana Statute

A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog.  I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup.  Hat tip to my Torts II class, which is ever vigilant.



Strict product liability—Roundup.  In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide.  (NYT, Mar. 19.)  Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported.  This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides).  Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.





Gun liability—Sandy Hook.  The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law.  (NYT, Mar. 14.)  The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act.  The dissent was unpersuaded.  Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here.  The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.



Wrongful death, collateral estoppel—Aaron Hernandez.  The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd.  Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017.  Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died.  Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed."  In the case of Lloyd, the victim's mother had settled her civil claim.  But the Court recognized 
the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion....  There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.
The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).



Invasion of privacy, infliction of emotional distress—Monica Lewinsky.  John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight.  Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace.  The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.




Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections.  Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice.  In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes.  The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events.  Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court.  The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video.  Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety.  The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning.  The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).



Criminal libel, First Amendment—Montana statute.  The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault.  The case arose from an ugly dispute in election of a county district judge.  The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness.  The federal court acknowledged that the state high court had read First Amendment standards into other state statutes.  But the criminal libel law had been applied without modification.  Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity.  Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019).  Professor Eugene Volokh wrote about the case for Reason.

Friday, March 1, 2019

Statute of repose bars asbestos claim, despite long latency of illness, Mass. high court rules

Pilgrim Nuclear Station, Plymouth, Mass. (by NRCgov, CC BY-NC-ND 2.0).
Answering a certified question from the federal district court, the Massachusetts Supreme Judicial Court (SJC) held unanimously today that a state statute of repose for personal injury claims bars a mesothelioma negligence suit against General Electric (GE) in the case of a former nuclear-plant construction worker exposed to asbestos.  The case is Stearns v. Metropolitan Life Insurance Co., No. SJC-12544 (Mass. Mar. 1, 2019) (PDF), certified by No. 1:15-cv-13490-RWZ (D. Mass. May 14, 2018).

Whereas the time limit of a statute of limitations runs from the time a would-be plaintiff becomes or should become aware that he or she has suffered an injury, a statute of repose sets a hard deadline contingent on an objectively verifiable event, irrespective of the plaintiff's experience.  Massachusetts law has a statute of repose, Mass. Gen. L. ch. 260, § 2B, that is generous to the construction industry, relative to other states' laws.  When personal injury arises from improvement to real property, tort claims are barred six years after the improvement is opened to use.

Wayne Oliver
Brockton, Mass., native Wayne F. Oliver worked as a pipe inspector for a contractor of GE on the installation of turbine generators at the Pilgrim Nuclear Station at Plymouth, Massachusetts, and at the Calvert Cliffs Nuclear Power Plant in Maryland in the 1970s.  Installation specifications called for the use of asbestos insulation, to which Oliver was exposed over the course of years.  In April 2015, Oliver was diagnosed with mesothelioma, a known health consequence of asbestos exposure, and in July 2016, at age 67, he died.

Plaintiffs in some toxin claims have trouble navigating statutes of limitations, because litigants dispute when an ill plaintiff should have realized that the illness was consequent to exposure.  Suing and non-natural causation are not necessarily the first thoughts of a patient diagnosed with cancer.  But mesothelioma victims often surmount statutes of limitations hurdles, because the disease has a long latency period, and then, as in Oliver's case, manifests onset and death in short order.  Statutes of repose then become problematic in cases arising from construction exposures.

Piping in turbine building at Russian nuclear power plant, 1986
(RIA Novosti archive, image #447414, by Petrouhyn, CC-BY-SA 3.0).

The SJC in Stearns recognized the well accepted proposition that statutes of repose may work a corrective injustice against injured plaintiffs, especially in case of diseases with long latency periods.  But the greater policy aim of statutes of repose is to time-limit liability for commercial actors, lest productive development become unaffordable for fear of perpetual liability exposure.

Contingent on objectively verifiable events, statutes of repose tend to be unforgiving of lapses in time.  The SJC observed that various statutes of repose in Massachusetts have not yielded in prior cases, even upon a defendant's intentional wrongdoing or fraudulent concealment of danger, or a victim's mental illness or ongoing medical treatment.  The statute of repose for medical malpractice contains an exception in the event of a foreign object left in a person's body, so, the SJC reasoned, the legislature knows how to make an exception when it wants to.  The statute of repose in construction is "ironclad."
Associate Justice Cypher

In a footnote, the court added:
The plaintiffs point out that a number of other State Legislatures have effectively exempted asbestos-related illnesses from their respective statutes of repose concerning improvements to real property. We encourage our Legislature to consider doing the same should it determine that such an exception is consonant with the Commonwealth's public policy.

The opinion in Stearns was authored by SJC Associate Justice Elspeth B. Cypher, a Pittsburgh native.  In the fall 2019 semester at UMass Law School, Justice Cypher is scheduled tentatively to co-teach, with former dean Robert V. Ward, Jr., Race, Women’s Rights, Gender Identity and the Law.

Upon Oliver's death in 2016, the family asked for donations to the Mesothelioma Applied Research Foundation, in lieu of flowers.

Friday, April 13, 2018

Mass. high court supports AG in climate change investigation of Exxon Mobil

I'm not a civ pro cognoscente, but a ruling of the Massachusetts high court on long-arm jurisdiction today caught my attention because it relates to the effort to hold Big Oil accountable for climate change.  The case is Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).

Mass. A.G. Maura Healey
(Edahlpr CC BY-SA 4.0)
Since 2016, Massachusetts Attorney General Maura Healey has been investigating Exxon Mobil Corp. under the state consumer protection law--the same Mass. Gen. L. chapter 93A that powerfully enhances conventional civil actions in tort in the commonwealth.  The AG tracks the investigation blow by blow online.  The AG opened the investigation after the 2015 revelation that Exxon might have known about the risk of climate change as early as the 1970s, as reported by Scientific American.

As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change."  Exxon resisted the CID on personal jurisdiction grounds.  Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469).  A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018).  Exxon is incorporated in New Jersey and headquartered in Texas.

The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained.  Exxon denied "suit-related" activity in Massachusetts.  But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.

Exxon franchise in Durham, N.C.
(Ildar Sagdejev CC BY-SA 4.0)
"The Attorney General's investigation concerns climate change caused by manmade greenhouse gas emissions--a distinctly modern threat that grows more serious with time, and the effects of which are already being felt in Massachusetts."  More than 300 Exxon and Mobil franchises operate in Massachusetts.  Considering the corporation's close supervision of franchisees, the fuel stations "represent[] Exxon's 'purposeful and successful solicitation of business from residents of the Commonwealth.'"  The franchise agreements moreover require Exxon sign-off of advertising, so the court rejected Exxon's efforts to distance the corporation from consumer sales.

The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country.  The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830).  If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).

In re United States, 884 F.3d 830 (9th Cir. 2018)
884 F.3d 830

In re United States, 884 F.3d 830 (9th Cir. 2018)

Sunday, March 25, 2018

Mass. high court allows generic-drug consumer to sue Big Pharma for reckless labeling


Just more than a week ago, the Massachusetts Supreme Judicial Court (SJC) issued an adroit and important decision on drug manufacturer liability.  In a decision worthy of other states’ attention, the SJC allowed a common law recklessness claim for failure to warn, unobstructed by federal preemption.  The case is Rafferty v. Merck & Co., No. SJC-12347 (Mar. 16, 2018) (PDF), per Chief Justice Ralph Gants.

It was in the last season of Boston Legal in 2008 (s5e02) that Alan Shore (James Spader), maybe my favorite TV lawyer, took on Big Pharma, right on the heels of victory over Big Tobacco.  In real life, Big Pharma has long been about the business of avoiding tort liability.  When labeling defects have been alleged, the Big Pharma defense has found traction in federal preemption, owing to the FDA’s close supervision of labeling under the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301, et seq.

One thread of this debate involves the relative responsibilities of brand-name and generic manufacturers.  In 2011, in PLIVA, Inc. v. Mensing, 564 U.S. 604, the U.S. Supreme Court, 5-4, rejected liability for a generic drug maker accused of failure to warn of side effects when the label matched that of the brand-name equivalent.

In the SJC last week, the plaintiff also was injured taking a generic drug, but sought to hold the brand-name maker accountable in negligence and consumer protection, accusing the maker of failure to warn on the label that the generic provider copied.  The plaintiff took the generic drug finasteride, in lieu of defendant Merck’s brand-name drug Proscar, to treat an enlarged prostate.  The label warned of sexual dysfunction as a temporary side effect, but the plaintiff experienced persistent dysfunction.  The plaintiff alleged that Merck was aware of the risk from several studies and had changed the warning label accordingly in some foreign markets, including Italy, Sweden, and the United Kingdom.

Significantly, then, the plaintiff admittedly complained against a defendant whose drug he did not take.  But the plaintiff traced causation to Merck, because FDA regulation of generic drugs compelled the generic maker to copy the Merck label, and PLIVA precluded liability for the generic maker.  The trial court dismissed, holding that brand-name-maker liability to a patient who did not take the maker’s drug also would “disturb the balance struck” by statute and regulation for the approval of generic drugs.

The SJC regarded the problem as one of duty.  Typically, the court explained, a manufacturer owes a duty of care only to consumers of the manufacturer’s own products.  The First Circuit upheld that logic in a 1983 case under Massachusetts law, Carrier v. Riddell, Inc., 721 F.2d 867.  The court, per then-Circuit Judge Stephen Breyer, denied recovery to a high school football player who blamed a helmet defect for his severe spinal injury.  He had not used the defendant-manufacturer’s helmet, but teammates had.  He alleged that had the defendant properly labeled its helmets, he would have been informed properly about his own.  The SJC further analogized the problem to the effort to hold responsible for a shooting an earlier-in-time actor accused of failing to secure the firearm.  The key to this duty analysis, the court explained, is the foreseeability of a plaintiff-victim—reminiscent of Judge Cardozo’s classic “orbit of duty” analysis in Palsgraf.

Duty in the drug liability problem, the SJC reasoned, is not the same as the product liability analysis in Carrier.  Rather, consistently with the federal regulatory scheme, Merck knows that generic manufacturers will be compelled to rely on its labeling.  Merck therefore has control over the generic label, and duty follows control.  One might say that the consumers of the generic drug are therefore foreseeable victims, for duty purposes, or that the chain of proximate causation runs intact through the intermediary generic maker, because the intermediary lacks control over the label.  Like Palsgraf itself, the case demonstrates the fluid interchangeability of duty and causation.

However, the court further reasoned, negligence, like strict liability, might be too low a liability threshold.  Shifting the liability of generic consumers on to brand-name makers adds to the cost of drug research and development in a way that might interfere with the legislative-regulatory scheme.  Under PLIVA, the brand-name maker could not share joint liability with the generic maker.  At the same time, allowing the brand-name maker wholly to escape liability would allow an injured plaintiff no recovery under any circumstances.  A balance may be struck, the court concluded, when the plaintiff can prove recklessness, or more, intent, on the part of the brand-name maker.

The court wrote: “We have nevertheless consistently recognized that there is a certain core duty—a certain irreducible minimum duty of care, owed to all persons—that as a matter of public policy cannot be abrogated: that is, the duty not to intentionally or recklessly cause harm to others.”  The court analogized to the duty of care owed by defendants in other exceptional areas of Massachusetts tort law: landowner to trespasser, defamation defendant to public figure, bailee to bailor, and athletes and coaches to competitors.

Otherwise put, the court maintained the essential balance of tort law upon its four fundamental elements, duty, breach, proximate cause, and injury.  The extension of liability to a defendant-manufacturer who did not actually make the injurious product depressed the thresholds for duty and causation.  To maintain balance, the requisite standard of breach is amplified to recklessness or intent.  Physical injury remains constant. 

Chief Justice Gants’s opinion in Rafferty is insightful and masterful.  It takes account of the greater endeavor of tort law to define civil wrongs, while balancing the corrective role of the judiciary with the policy-making role of the legislative and executive branches, and also striking a balance in federalism between tort accountability in the states and market regulation under the Commerce Clause.  At the same time, the decision recognizes how these balances are struck across the body of tort law in areas that usually seem only distantly related, from premises liability to reputational harm to sports.  This would be one for the casebooks, if casebooks were still a thing.