January 8, 2011
Vaccines and Drugs: A Brave New Tort World
Torts & Compensation Section Chair Cathy Sharkey (NYU) introduced the panel by noting its diversity. In addition to academics, the panel included a policy expert and a practicing lawyer. The papers from the panel will be published in an upcoming volume of the Indiana Health Law Review.
Robert Rabin (Stanford) began the presentations by providing an outline of the vaccine no-fault program at issue in the upcoming Bruesewitz case. The program was enacted in 1986 and became effective in 1988 at the behest of manufacturers concerned with high damages awards. The goal was to ensure the continued availability of vaccinations while providing compensation for those adversely affected. The program is an adversarial process that does not eliminate recourse to the tort system. Pursuant to the program, those who believe they have been injured by a vaccination need not establish fault, only causation. A vaccine court was established to resolve causation issues by specialists with knowledge of vaccines. Damages are capped, and punies are not available. The claimant has the option to accept the award or reject it and sue in tort.
James Copland (Manhattan Institute/Point of Law) began by noting the issue in Bruesewitz was whether design defects in vaccines are preempted. Copland stated he would focus on policy arguments and not address statutory construction. Copland listed several goals of the tort system as deterrence, compensation, and equity (he exemplified this as redistribution, not necessarily an individual justice perspective). On the deterrence issue, the question is whether the FDA sufficiently deters or whether the tort system should provide additional deterrence. Copland distinguished type 1 errors (a vaccine or drug being released and causing unknown side effects and injuring someone) and type 2 errors (being overly conservative and not releasing a drug on time, depriving someone of the beneficial effects). He opined that type 2 errors are more common than type 1 errors, citing an empirical study he co-authored on the issue. Copland argues the FDA probably overdeters rather than underdeters, and he supports a compensation scheme to handle the compensatory aspects of vaccine injuries.
Mary Davis (Kentucky), who described herself as the "lone tort wolf" on the panel, began by outlining the doctrine of preemption. She described the series of preemption cases since 1992 as the courts seeking clarity. Based on the Supremacy Clause, the touchstone of preemption is Congressional intent to override state tort claims. Preemption has both an express and an implied version. Davis noted the Court has tried to avoid nuances in its rulings, and there is a presumption against preemption. She read language from a recent preemption opinion to the effect that the text of the preemption clause, if susceptible of more than one meaning, will be construed narrowly. She then turned to Bruesewitz itself, stating the clause to be interpreted was unusual. She argued that the injury was not "unavoidable," because the manufacturer exercised discretion in creating the vaccine at issue. She concluded by stating of the FDA process that science aims at certainty, but it is difficult if not impossible to attain. Tort can function as a safety valve in those instances science fails.
Mal Wheeler (Wheeler Trigg O'Donnell), who has argued many significant preemption cases, sought to bring a "real world" perspective to the panel. In describing the progress of several of his major cases, he emphasized the role of fortuity in the unfolding of litigation, arguing that the certainty of preemption was preferable. He also challenged the notion that Wyeth altered the law of preemption, stating the case used language that had been used before.
In closing comments, Rabin stated that he did not believe tort suits would undermine the no-fault vaccination scheme, noting the difference between causation and design defect issues. Copland predicted "an enormous uptick" of plaintiff activity if vaccination design defect suits are not preempted. Davis lauded the vaccine program as a good example of interplay between administrative and tort approaches to injury; she emphasized the information-forcing role of discovery in tort. Wheeler concluded by noting that there was no empirical evidence that a U.S.-style tort system was necessary. He argued that the FDA needs more resources.
At the end of the panel's comments, Sharkey presented the Prosser Award to Judge Guido Calabresi, who was unable to attend due to a family wedding in Italy. Sharkey read a letter from Judge Calabresi, in which he expressed his delight at being honored. Mike Rustad rotated into the position of Chair of the Section.
AALS Panel on Disability and Tort Law
The official Torts & Compensation Section panel is not the only panel at AALS relevant to torts. A panel co-sponsored by the sections on Disability Law and Remedies covered the intersection of torts and disability law. The chair of the Disability Law Section, Mark Weber (DePaul), put together a great panel based on a call for papers. The panel occurred yesterday morning, but Alcatraz beckoned, and I'm only posting it today.
The panel started somberly as Weber noted the passing in October of disability rights champion Paul Steven Miller. The panel was dedicated to his memory.
Anne Bloom (Pacific McGeorge) presented a paper that originated in her exchanges with Miller, entitled "Reframing Tort Litigation: Redefining Plaintiffs with Disabilities." Bloom made 3 major points. First, tort law is based on a medical, as opposed to a social, model. The medical model "requires plaintiffs to present their bodies as a problem to be solved," while the social model regards disability as a social construct. Second, using a medical model in tort is problematic because it presents the disabled as lacking. Bloom questions whether tort litigation incentivizes plaintiffs to adopt a victim status. Third, Bloom asks what a social model as applied to tort would look like. Primarily, it would rely less on medical testimony and more on experiential testimony from others with the same condition as the plaintiff. She couples this with the idea that damages should be less focused on making whole and more focused on providing the plaintiff a mechanism for accountability. She explicitly draws on the civil recourse scholarship of John Goldberg, Ben Zipursky, and Jason Solomon.
Next Geoffrey Rapp (Toledo) presented "Meddling Reasonableness: Disability, Care, Access & Obligation in the Law of Tort." Rapp focused on one of the major ways in which tort and disability law intersect, the fact that tort liability standards take into account physical disabilities. He noted this has advantaging and disadvantaging aspects for the disabled. The advantaging aspects, which tend to receive more attention, favor the disabled by altering the standards for their perception of danger and ability to avoid danger using reasonable care. On the other hand, the more subjective standard can disadvantage the disabled by imposing an obligation to utilize special precautions and limiting access to some activities. Rapp noted several problems with the disadvantaging aspects. First, he said what a "reasonable person" should do is decided by judges, most of who are not disabled. Second, he questioned whether such impositions were a slippery slope. Third, he noted the subjective standard can block prohibit access and prevent integration. Finally, he noted the impositions can be costly. Rapp didn't have time to present his solution, so we will have to await the paper.
Laura Rothstein (Louisville) began by stating that the built environment was not what it should be for the disabled and she focused on the best way to improve it. Specifically, she questioned whether a tort remedy would help or hinder improvement of the built environment. She raised the possibility that statutory remedies such as the ADA, with an emphasis on injunctive relief, would be preferable. One particular concern she raised was the possibility that too many tort cases, some of questionable validity, had caused a judicial backlash.
Finally, Ani Satz (Emory) presented "Mental Impairment in Tort." Satz called attention to the different treatment in tort for physical and mental disabilities. In general, mental disabilities are not taken into account for purposes of tort liability. Satz challenged this dichotomy. First, she argued that the rule on mental disabilities was largely parroted from earlier cases (Weaver v. Ward: "if a lunatic hurt a man, he shall answer in trespass"). Second, she argued that such treatment is inconsistent with the treatment of physical disabilities in liability rules, comparative fault, and damages. Finally, she stated her goal was to create new legal assumptions about mental disabilities. Specifically: (1) tort should focus on incentivizing individuals and not their caretakers, (2) disabilities occur on a spectrum; it's not accurate to say that people are either insane or their disability is trivial, (3) any impairment, whether it be physical or mental, can affect functioning, and (4) individuals with mental impairment should not be viewed as able to form intent for intentional torts if they cannot form an intent to harm or offend, as opposed to simply intend contact.
All the panelists are still working on the papers, and indicated a desire for feedback.
January 6, 2011
Coverage of the Vaccines and Drugs Panel at AALS
By the time this post goes up, I'll be en route to San Francisco. For those of you who aren't attending the conference, I'll have coverage of the Torts & Compensation Section's Panel, "Vaccines and Drugs: A Brave New Tort World." Moderated by Cathy Sharkey (NYU), the panel includes James Copland (Manhattan Institute), Mary Davis (Kentucky), Robert Rabin (Stanford), and Malcolm Wheeler (Wheeler, Trigg, O'Donnell). If you plan to be at AALS, the panel is Saturday from 1:30-3:15 at the Parc 55. Earlier posts describing the panel are here and here.
January 5, 2011
Klein on Libel Tourism
Andy Klein (Indiana-Indianapolis) has posted to SSRN Some Thoughts on Libel Tourism. The abstract provides:
This paper addresses the topic of “libel tourism,” a phrase used to describe cases where plaintiffs sue for defamation in a foreign jurisdiction and then seek to enforce judgments in the U.S., where the outcome might have been different because of protections for speech embodied in the United States Constitution. A number of commentators have discussed libel tourism at length, and this paper does not provide a treatise on the topic. Rather, it reviews recent reactions from legislators, courts, and commentators, and then offers some thoughts about whether these reactions appropriately balance concerns of comity and free speech. Ultimately, the essay concludes that U.S. attempts to address the issue of libel tourism have been quite broad, and suggests a more cautious approach that would better contribute to maintaining America’s role as a leader in the evolving world of tort law.
Andy also posted some of his earlier works:
Personalized Medicine and Toxic Exposure (with Jennifer Girod)
January 4, 2011
Katrina Limited Fund Class Settlement Rejected by 5th Circuit
This missed by radar, and I'm glad the Drug & Device guys were on top of things (as usual). The Fifth Circuit (pdf) has rejected a proposed limited fund class settlement in a piece of the Katrina related litigation. The fund was composed of the defendants' $21 million insurance policies, and as D&D puts it, included a "grab bag of various and sundry injuries." D&D has a full analysis of the opinion.
January 3, 2011
Welding Rod Litigation Update
Sean Wajert at Mass Tort Defense provides a concise update on the status of the welding rod litigation MDL, in which plaintiffs allege that fumes from manganese welding rods caused various injuries. Wajert also reports on a recent case by the Mississippi Supreme Court overturning a plaintiff's verdict in a welding rod case based on the statute of limitations.