Monday, August 28, 2006
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
Arnold Friede is Senior Corporate Counsel at Pfizer. Prior to joining Pfizer in 1998, he served in various roles, including Vice President and General Counsel, at Unilever. He has also worked at the FDA. He can be contacted at Arnold.I.Friede@Pfizer.com.
I remember Mrs. Palsgraf's mad dash for the departing Long Island Railroad. But I have a hard time translating what I learned about proximate cause as a law student 100 years ago in that context to the kinds of proximate cause questions we now see everyday in consumer fraud litigation against pharmaceutical manufacturers.
In addition to traditional product liability lawsuits for personal injury, pharmaceutical "tort" litigation now also typically involves cases brought as putative class actions on behalf of thousands of individuals, and entities such as third party insurance payors, who explicitly disclaim any actual physical harm. They claim that, but for the manufacturer's misrepresentations about a prescription drug's safety or effectiveness, they would never even have purchased or paid for the product in the first place, or, had they still purchased or paid for it despite the misrepresentations, would have paid a lot less than what they in fact paid because its attributes were misrepresented. Accordingly, these plaintiffs assert claims for purely economic harm that sometimes dwarf the personal injury claims in terms of the magnitude of the potential monetary damages, often involving billions of dollars, such as in the Vioxx consumer fraud litigation. These consumer fraud actions are now ordinarily brought under state statutes that prohibit deceptive practices and under related common law theories such as fraud, misrepresentation, unjust enrichment, and the like.
In this context, we need a "torts" curriculum that disaggregates proximate cause from its personal injury roots and shows how, as a policy and legal matter, it must also be imported into the world of statutory torts, such as those we confront in pharmaceutical consumer fraud litigation. The Supreme Court has repeatedly reaffirmed the role of proximate cause in a variety of legal contexts. How in the world can an alleged misrepresentation through, say, direct-to-consumer advertising of a prescription drug, proximately cause the plaintiff's economic injury when, in fact, a learned intermediary -- the physician -- is the final decision maker? How do concepts of reliance and causation fit into the proximate cause inquiry outside the personal injury context? Conversely, can and has the Legislature simply legislated proximate cause out of existence in the context of statutory consumer fraud claims? Is that a good thing? Is it the right thing?
It seems to me that there is a lot here that deserves attention in the law school classroom.