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Friday, April 26, 2013

Guest Blogger Max Kennerly: "The Danger of Assuming Judicial Omniscience in Tort Law"

When Chris invited me to write a guest post for TortsProf, I already knew what I was going to write about: how the courthouse doors were being increasingly closed on tort plaintiffs by way of procedural changes, to the point that, in many contexts, civil procedure law was more determinative of the outcome of tort disputes than substantive law. Between the time I came up with my article, however, and the time it was due, civil procedure Professor Arthur Miller published his new article, “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.”

Talk about being preempted.  

Professor Miller’s article is, unsurprisingly, thorough and erudite, covering the last thirty years of changes — the majority of them made out of whole judicial cloth — in the law applicable to procedural issues like summary judgment, class action certification, arbitration, pleading, jurisdiction, and discovery, all of which greatly benefitted defendants in tort lawsuits, particularly well-financed corporate defendants. I do not mean to repeat Professor Miller's arguments, nor to rehash the many arguments made by consumer and civil justice advocates against these recent developments (I’ve made many similar criticisms before), but to address them from the perspective of, shall we say, epistemology. 

Society develops its laws by making choices about public policy, both choices about who should prevail in a given hypothetical where the facts are known, and choices about whom we favor when the true facts are unsettled, unknown, or unknowable. For example, in criminal prosecutions, we in theory demand considerable certainty — “beyond a reasonable doubt” — before permitting a conviction, in part because we claim to adhere to Blackstone’s formulation that “it is better that ten guilty persons escape than that one innocent suffer.” Blackstone’s formulation is itself an expression of the belief that, where there is a reasonable possibility that an element of the crime is not truly
known, we will favor the defendant. 

For decades, tort law has been discussed as the rules we follow to decide when one party must pay for the injuries suffered by another. With the growing influence of civil procedure and evidentiary rules in tort litigation, and the growing cost of litigation (which affects plaintiffs just as much, if not more, than defendants) the real question in tort law that determines cases today is decreasingly a question of when one party will be liable to another and increasingly a question of when we allow an injured party to access the judicial system at all. The above procedural changes noted by Professor Miller are not mere alterations to the process by which a party brings their civil dispute to the court and presented to a jury; they are routinely outcome determinative.

The Federal Rules of Civil Procedure and of Evidence do not contemplate any circumstance in which a plaintiff with a potentially meritorious claim with unsettled facts is dismissed before trial, and yet tort litigation –— including nationwide multidistrict litigation involving thousands of claimants, billions of dollars in damages, and significant factual disputes — is routinely dismissed in advance of trial on the basis of factual determinations made by judges about what is known, unknown, or unknowable.

In AT&T v. Twombly, the plaintiff’s complaint admitted it was not known whether telecommunications company defendants had conspired to allocate certain markets, but alleged ample facts calling into doubt the existence of fair competition, given the curious geographic distribution of the networks and the absence of competition. Yet, rather than recognize the existence of this conspiracy as being an unsettled factual question, the U.S. Supreme Court affirmed dismissal — on the pleadings alone, in advance of any discovery — on the grounds such an allegation was not “plausible.” In other words, the Court held it knew there could be no conspiracy among the defendants.  

In Kumho Tire Co. v. Carmichael, the right rear tire of a minivan blew out, causing a fatal accident. It was known that the tire failed, but it was unsettled whether a defect in the tire contributed to the accident; plaintiffs retained a mechanical engineer with an MSME who had worked in polyesters at Celanese Plastics, tire design and failure testing at Michelin, and then had done accident reconstruction and tire failure cases for years, who testified as to the reasons why he believed the blowout was caused by tread separation itself caused by a faulty design. The Supreme Court, however, affirmed a trial order precluding the expert from testifying entirely, essentially holding that the cause of the blowout was unknowable, even to experts in the field using their ordinary research methods. 

These sorts of determinations about what is known or can be known in complicated cases are now commonplace in our courts. The Eleventh Circuit held in Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312 (11th Cir. 2011) that it was unknowable how a patient ended up with pieces of plastic in her lower abdomen, even though her gynecologist, gastroenterologist and general surgeon all thought the plastic came from the SurgiWrap implanted in her just one month before, and thus precluded her from presenting her case to a jury. The Texas Supreme Court knows, as affirmed in Garza v. Merck & Co., 347 S.W.3d 256 (Tex. 2010), that a drug is indisputably harmless unless there are two formal epidemiological studies showing the drug at least doubles the risk of the particular disease the plaintiff suffered, and thus dismisses every pharmaceutical liability case without that specific evidence.

These decisions reflect, at bottom, a policy choice made by our courts, particularly the Supreme Court, to give preferential treatment to defendants in complicated disputes (and defendants who have well-concealed their conduct), by making factual determinations — e.g., that an allegation is “implausible” or that testimony by a qualified expert is nonetheless “unreliable” — that render it impossible for the plaintiff to satisfy their burden of proof. Outside the legal system, most of these disputes involving compelling circumstantial evidence and qualified expert witnesses would be considered to involve unsettled facts, but in the tort system courts routinely deem certain unsettled facts to be known in a manner that limits or precludes plaintiff’s claim, and deem certain unknown facts to be unknowable to anyone at all and thus wholly off limits to the legal system.

I personally feel that the increasing entrenchment of judicial infallibility, in which courts decide for themselves just enough facts to determine the outcome of complex cases, violates the Seventh Amendment, the text of the federal Rules, and undermines the legitimate purposes of the civil justice system for nothing more than a modest increase in profits for well-financed, well-insured corporations. Others, however, may feel that Blackwell’s formulation should apply to tort cases, that it is better for some meritorious cases to be wrongly denied than for any claims based on unsettled facts to prevail. (As you may suspect, I am sharply critical of claims that curtailing tort law is good for the economy.)

But there is one issue that should concern us all: as the courts become increasingly obsessed with deciding complicated cases by reference to procedural doctrines that ask the court to leave its expertise in the law and feign expertise in complex factual situations, courts run an increasing risk of becoming wholly unmoored from the facts of the disputes they are trying to decide. If a primary concern about tort litigation is that it is unpredictable — as is often stated by tort reformers — then everyone should be concerned when judges decide for themselves the dispositive facts of cases.

--Max Kennerly, The Beasley Firm, Philadelphia, PA 

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