Showing posts with label tobacco. Show all posts
Showing posts with label tobacco. Show all posts

Tuesday, May 30, 2017

Book Review: The Experimental Society by Marshall S. Shapo



Catching up on reading since the close of the spring semester, I just finished Professor Marshall Shapo’s The Experimental Society (Transaction Publishers (now Routledge) 2016) (385 pp.) (publisher, Amazon, SSRN abstract, author interview) (385 pp.).  I highly recommend the book, which is fit for general audiences, besides lawyers and law students.


The experiment of the book’s title refers loosely to the American mix of free market and tort litigation, which works out the rules for what is allowed and not allowed in our society.  The dynamic is most plain in product liability.  A manufacturer brings to market a new and useful product, such as asbestos.  Later it’s learned that the product poses a grave risk to human health.  In extracting accountability for physical injury, the tort system regulates the continued use of asbestos.

What this system ill accounts for is its human toll.  The tort system is a balancing act.  Extreme regulation (vetting?) of everything new—a drug, a car, or a method of cleaning floors—would make research and development prohibitively expense and smother innovation.  Injury and death would result from drugs never developed, or safety innovations never deployed.  At the other extreme, diminished accountability would sanction the prioritization of profit over life.

Civil conflict resolution—our litigation system—threads, marks, and forever revises the boundary between right and wrong.  But our dependence on that system presupposes optimal, if not ideal, efficiency.  In reality, our tort system is rife with inefficiencies.

The starkest of those inefficiencies might be time.  I just takes too long to reach a conclusion in U.S. litigation—months, years, and sometimes decades.  While the wheels of justice grind, injured persons are not made whole, and new victims are claimed.  Another inefficiency is “transaction costs,” that is, the cost of dispute resolution, which is compounded by time.  Our drive for just and precise outcomes means that lawyers, experts, and litigation soak up a disproportionate amount of resources—if a matter can be litigated at all—re-victimizing the injured plaintiff and penalizing a defendant that might or might not have done anything wrong.

But inefficiencies get worse still, as the tort system tends to perpetuate socio-economic inequalities and irrational discriminations.  A poor community, less able to accomplish political organization or campaign contribution, cannot finance tort litigation to combat the impact of industrial pollution as effectively as a wealthy community can.  Even after wrongdoing is established in tort litigation, awards turns on loss, meaning that the working poor and the unemployed have less to recover than the injured doctor or lawyer.  These socio-economic effects exaggerate systemic prejudices of race and gender.  Moreover, bias can be perpetuated in fact-finding through judge and jury in a case.  And bias finds its way even into law itself, such as in liability standards that favor the alienation of real property—and therefore those who can afford it.

The Experimental Society examines the real social impact of our litigation system as hall monitor.  Shapo engages briefly with the familiar territory of product liability for asbestos and cigarettes.  But with that historical foothold, the book ranges widely to examine contemporary risks, such as bisphenol A (BPA) and vaping.  Shapo moreover expands his inquiry well beyond straightforward product liability.  He engages at length with environmental contamination, examining fracking, oil spills, and nuclear accidents.  He considers threats to the food supply, such as mad cow disease with its mysterious pathology.  Shapo also thinks expansively about experiment, embracing in his analysis both the deliberate experimentation of human clinical trials and the inadvertent yet ultimate experiment of climate change.

This encyclopedia of troubling experiments under way in our world delineates one axis of Shapo’s inquiry.  Meanwhile he draws a second axis, which traces the anatomy of risk and rules.  About the first half of the book explicates case studies to the end of broadly defining risk and experimentation.  The latter half of the book dives deep into dispute resolution, considering how this broad range of experimentation in our society has generated various standards, rules, and remediation systems in workplace safety, consumer protection, and mass tort litigation.  Shapo’s end-game, reached in the final chapters, considers the interplay of our experimental society with cultural and moral factors—for example, our values with respect to personal responsibility, risk-utility economics, and technological determinism.

As the back cover of The Experimental Society reminds us, Marshall Shapo—the Frederic P. Vose Professor at Northwestern University Law School, and, disclosure: my lead co-author on the casebook Tort and Injury Law, and a treasured mentor—has been writing about injury law for half a century.

Yet however much the product of an elder statesman in tort law, The Experimental Society is boldly contemporary.  The book is a one-stop shop for anyone who wants to tour the leading edge of risk, health, and law.  The relevant science and technology, business and economics, and law and policy all are laid out in plain language to engage any reader interested in the human condition.

The Experimental Society disappointed me in one respect only: it offers no answer.  The reader should be warned that the book ends with only the urgent question it raises, where the balance should be struck in our tolerance of risk.  This is not The Secret, with the promise to invigorate your fortunes; nor Hidden Figures with its revelatory moral tale; nor the latest blueprint to fix our democracy.  The Experimental Society isn’t selling answers.

Though I was disappointed not to find at the book’s end that Shapo’s wealth of experience could map out The Better Way, that expectation was foolhardy on my part.  However skilled a researcher and writer, Shapo is after all a teacher.  He recounts in the book a Socratic game he played with his eight-year-old granddaughter to demonstrate for her, of all things, Ken Feinberg’s predicament in compensating economic loss after the BP oil spill.  In good American fashion, the girl favored compensation precisely and fully for everyone who suffered injury.  Shapo didn’t tell her that that, ultimately, would be impossible; he showed her.

And that’s what The Experimental Society does: it shows us a problem that is inherent in the human social condition.  It turns the problem over, so we can see it from every angle.  Risk, it turns out, is not antagonistic to life; risk is an indispensable condition of life.  Risk yields reward, and reward makes life worth living.  How do we manage that risk to maximize reward, and what costs are we willing to tolerate in its pursuit?  Shapo knows that that’s an ancient problem—older than Deuteronomy 19:5.  So in The Experimental Society, he does the best a teacher can: to restate an eternal question for a new age.

Thursday, October 6, 2016

Big Tobacco wins in Mass. trial for medical monitoring

Big Tobacco's Philip Morris prevailed in a product liability jury trial in Massachusetts in late September.  Hat tip: Torts Today.

The litigation started in 2006 with Massachusetts Marlboro smokers not alleging physical illness as such, but seeking medical monitoring in the form of "Low Dose CT Scanning of the chest" to early detect lung cancer.  State law in the United States has been increasingly receptive to medical monitoring as a form of award in mass tort cases, though a division has emerged in the jurisdictions between acceptance and rejection of the theory.  An award of medical monitoring essentially recognizes a civil wrong upon a modicum of extant physical injury, so raises concerns about the appropriate scope of tort liability.  If the tort system becomes too far detached from substantial, quantifiable loss, we worry about susceptibility to fraud, incentives to over-litigiousness, reliability of the courts to resolve disputes, and ultimately whether tort law will so pervade our lives that we fear liability for causing hurt feelings.

In the decade of litigation in this PM case, the federal court certified questions to the Massachusetts Supreme Judicial Court to ascertain whether Massachusetts law recognizes a medical monitoring claim, and if so, when the statute of limitations period begins to run.  The SJC found its way to answer the first question in the affirmative in 2009 (455 Mass. 215).  The Court at that time wrestled with the physicality question, opining that indeed, "[n]egligence in the abstract does not support a cause of action" (quoting precedent).  But the Court found enough of a physical-injury hook on which to hang its hat.

"Our tort law developed in the late Nineteenth and early Twentieth centuries," the SJC wrote in 2009, "when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent."

So there is physical injury, the Court explained further:
Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring.  Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff's reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes. 

The Court set out the plaintiff's burden--in equity, rather than in tort--to prove:
(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint [grammatical non-parallelism in original!]. 
Expert testimony is "usually" essential.

On the second certified question, the Court found that the statute of limitations could afford some play room.  The Court ruled that plaintiffs' claims could come within the limitations period if the remedy sought, monitoring by low-dose CT scan, represented a new technological remedy where no remedy was previously available.  Moreover, this equity action would not preclude a later tort action, should cancer manifest and be detected.  The discovery rule would not run the limitations period on the cancer action until detection.

But all for naught in the end, in this case at least.  Back in federal court in September 2016, the jury rejected the plaintiff's claim of design defect in Marlboro cigarettes under the "RAD" test.  A design defect is a kind of product defect that may be said to occur when a product is properly made, because the failure is in the design itself.  RAD is a way of testing for design defect by asking whether the manufacturer could have availed of a "reasonable alternative design" that would not have contained the same injury-causing defect as the design that was employed.  Specifically, applying Massachusetts law, the federal court required the plaintiffs "to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer)."  Plaintiffs could not meet that burden.

The case also involved a "93A" claim, referring to Mass. Gen. Laws ch 93A, an important statutory claim in Massachusetts tort law that can sometimes give a plaintiff an alternative route to a win and can generate a multiplier on damages.  Formally 93A is a consumer protection statute, but unusually broadly drawn, it appears routinely as a companion to conventional tort claims.  However, there was no alternative route in this case, and the 93A claim failed upon the collapse of the design-defect theory.

The case is Donovan v. Philip Morris, No. 1:06-cv-12234-DJC (D. Mass. Sept. 22, 2016).  Here is the court Order:
Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with D. 540, 569 and 733, the Court reserved judgment on Plaintiffs' c. 93A claim against Defendant Philip Morris. This claim, as both parties acknowledge, is premised upon the breach of implied warranty of merchantability (i.e., the design defect claim). D. 29 at ¶¶ 100-110; D. 736 at 2; D. 725-1 at 3 (noting that a breach of warranty claim generally constitutes a violation of c. 93A and cases cited). It was the design defect claim for which a jury, after a contested and well-tried case by both sides, found Philip Morris, not liable. D. 718 (verdict form). Having considered the evidence presented at trial and the parties' proposed findings of fact and conclusions of law, 725, 736, 740 (Plaintiffs' reply), the Court renders judgment for Philip Morris on the c. 93A claim and makes the following findings and conclusions.

The jury found for Philip Morris on the design defect claim, finding in the first instance that Plaintiffs failed to show that Marlboro cigarettes produced by the Defendant are defective and unreasonably dangerous. D. 718 at 1. The court finds that the Plaintiffs failed to show that there was a safer, feasible alternative design for Marlboro cigarettes (i.e., an alternative design that would not unduly interfere with the performance of the product from the perspective of a rational, informed, non-addicted consumer) and that the Defendant's failure to adopt a safer, feasible alternative design was unreasonable. The Court adopts the Defendant's proposed findings of fact, D. 736 at ¶¶ 14-82 in this regard.

Having found and concluded that Plaintiffs failed to prove this first, requisite element of the breach of implied warranty of merchantability claim, the Court need not address the remaining elements of that claim. D. 715 at 159-60 (jury charge addressing elements of design defect claim). Since this claim was the basis of the alleged unfair and deceptive act under c. 93A, the Court concludes, by a preponderance of the evidence and based upon the same findings of fact, that Plaintiffs c. 93A claim fails as well.

Accordingly, the Court shall enter judgment for Defendant Philip Morris as to the c. 93A claim (Count III). (Hourihan, Lisa) (Entered: 09/22/2016)

Full disclosure: I served on the Philip Morris litigation team many, many years ago.