TortsProf Blog

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 

Tomorrow's Guest Blogger: Max Kennerly

Max Kennerly has successfully represented a wide variety of injured clients, from the parents of an 18-year-old who needlessly died during liposuction (a case that required a five week trial in 2008, resulting in a $20.5 million jury verdict, including the largest punitive damages ever awarded in a Pennsylvania medical malpractice case), to a baby boy injured at birth by a hospital that refused to perform a c-section for hours and so developed cerebral palsy, to the estate of a 19-year-old woman killed by a fatigued truck driver who was encouraged by his employer to fabricate his log book so he could spend more hours on the road. Max has also successfully represented a number of individuals and businesses with financial damages, including a homeowner whose mortgage company failed to properly search the title of her home and a small electronics business defrauded by a wealthy former contractor. As of 2012, in addition to his personal injury and medical malpractice work, he represents dozens of clients with product liability lawsuits arising from the Actos, Pradaxa, and implanted mesh erosion litigations.

The law isn’t just a job for Max, it’s a profession, and he devotes substantial time and energy to pro bono efforts and to educating lawyers and non-lawyers about the law. Max has several times appeared on the Philadelphia Court’s Pro Bono Honor Roll for his volunteer service. One of his passions is writing, and so he spends a lot of time informing the public about the law on his Litigation & Trial blog and through contributions to non-legal publications such as Emergency Physicians Monthly, where he debated a physician about malpractice issues, and NYC Aviation, where he discussed the Reno Air Races disaster. He has been referenced as a legal analyst in publications like The New York Times, The Atlantic and Business Insider. Most recently, he was quoted by the Philadelphia Daily News / WHYY’s ”It’s Our Money” project discussing Occupy Philadelphia, cited by Vanity Fair discussing the Facebook ownership lawsuit from The Social Network, and quoted by Reuters news discussing the Penn State child abuse scandal.

Within the law, Max was selected by his peers to be included in Super Lawyers magazine as a Pennsylvania Rising Star. He has also taught Continuing Legal Education seminars for the Pennsylvania Bar Institute,  has contributed to legal publications such as The Jury Expert, and has been quoted by publications like Inhouse Counsel and the American Association for Justice’s Trial magazine.

Max also wrote one legal book with Jim Beasley, Jr., a guide for civil lawyers in Pennsylvania, that was published earlier this year, and is working on another one (also with Jim) for civil lawyers nationwide, due in another two years.

Max graduated from Yale University with Honors in History and from the Beasley School of Law at Temple University as a Law Faculty Scholar and a member of the Rubin Public Interest Society. At Yale he wrote an award-winning paper on the history of the Federal Reserve. At Temple Law he was a Teaching Assistant in Constitutional Law for Dean Robert Reinstein and a clerk in the Federal Court Clerkship Clinical program.

Tomorrow's Guest Blogger: John Hochfelder

John M. Hochfelder is a traumatic injury trial lawyer in the New York City metropolitan area and Hudson Valley region. His career began as a law clerk to a federal judge in the U.S. District Court  (S.D.N.Y.) after which he was a commercial litigator in a large Manhattan law firm. He's been a local court judge, an EMT and now, in addition to his personal injury law practice he publishes the widely read and acclaimed New York Injury Cases Blog where Mr. Hochfelder reports on and analyzes all New York appellate cases that rule on damages.

Daniel Cummins: "A Maze of Uncertainty: PA Products Liability Law Remains in a Confusing State of Flux"

          As of the writing of this article in January of 2013, confusion is reigning in the Commonwealth of Pennsylvania on the uncertain issue of whether the Restatement (Second) of Torts or the different analysis set forth in the Restatement (Third) of Torts should be utilized in Pennsylvania products liability cases.  This uncertainty is the result of an ever-growing split of authority not only between the Pennsylvania state and federal courts, but also among, and even within, the different federal district courts across the Commonwealth.

          The situation has now spiraled downward to the point that litigants with cases pending in the Pennsylvania federal court system have to research whether the particular federal district court judge presiding over the case has previously issued a decision on the issue in order to determine which Restatement standard will be applied in that case.   While one Pennsylvania federal court judge has politely noted that this area of the law in Pennsylvania is in a “state of flux,”[1]   See Sikkelee v. Precision Automotive, Inc., 876 F. Supp. 2d 479, 489 (M.D. Pa. 2012 Jones, J.). another has more aptly described Pennsylvania products liability law as being “a maze of uncertainty.”[2]  See Samson v. Crown Equipment, 2:10-CV-0958, 2012 WL 3027989 (W.D. Pa. 2012 Hornak, J.). 

          Which standard is applied could make or break a case.  Although the Restatement (Second) favors strict liability concepts over negligence principles in the products liability context, the Restatement (Third) decreases the impact of concepts such as "intended use" and "intended user" and places a greater emphasis on the negligence principle of "reasonable foreseeability."   All of these changes in the Restatement (Third) arguably shift the balance in favor of manufacturer defendants in personal injury cases based upon allegations that a defective product was the cause of the injury.

          As noted below, under the current status of Pennsylvania products liability law, whether the case will be governed by the Restatement (Second) of Torts or the Restatement (Third) of Torts depends upon whether the case is in state or federal court, and if the case is in federal court, the answer may further depend upon which particular federal district court judge is presiding over the case.

The Restatement (Second) of Torts § 402A Standard

          It is safe to say that most Pennsylvania lawyers now practicing law now were trained on products liability issues in law school through a detailed study of the parameters of Section 402A of the Restatement (Second) of Torts.  This section of the Restatement (Second) of Torts, which first came back into play in 1965, provides, in pertinent part, that “[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer” may be held strictly liable to the injured party even if the “seller has exercised all possible care in the preparation and sale of this product.”[3]  Restatement (Second) of Torts § 402A (1965).

          At the time it was published, Section 402A of the Restatement (Second) of Torts codified a new strict liability cause of action against manufacturers to be considered in addition to the other previously viable causes of action, such as negligence and breach of warranty.  Section 402A also expanded the scope of possible liable parties to also include all sellers in the distribution process related to the dissemination of the product to the public at large.

          The Pennsylvania Supreme Court has consistently applied Section 402A of the Restatement (Second) of Torts to Pennsylvania products liability cases since its 1966 decision in the case of Webb v. Zern.[4]  See Arthur L. Bugay & Craig L. Bazarsky, The Future of Pennsylvania Products Liability as Applied by Federal and State Courts: Covell v. Bell Sports, Inc.  Volume LXXXIII, No. 4 The PA Bar Assoc. Quarterly p. 139, 140 (October 2012) citing  Webb v. Zern, 220 A.2d 853 (Pa.). 

          Under the Restatement (Second) of Torts analysis, manufacturer defendants are held to be strictly liable for any manufacturing defects in their products.  With regards to design defect claims, since approximately 1984, the Pennsylvania courts have used a risk-utility analysis to initially determine, as a matter of law, whether a product may be considered by the jury to be defective. [5]  Bugay, supra at p. 143 citing with “See” signal Daumbacher v. Mallis, 485 A.2d 423, n. 6 (Pa.Super. 1984) and Surace v. Caterpillar, Inc. 111 F.2d 1039 (3d Cir. 1997).

          If the case makes it beyond this threshold finding, the matter will be permitted to proceed to the jury for a determination as to whether a product’s design was defective and the cause of the injury alleged.[6]  Id.

The Restatement (Third) of Torts § 2 Standard

          The Restatement (Third) of Torts was published in 1998.[7] Id.   Under Section 2 of the Restatement (Third) of Torts, recognized product defects that may subject a defendant to liability include manufacturing defects, design defects, and failure to warn defects.[8]  Id. [Citations omitted].

          In Section 2 of the Restatement (Third) of Torts, the definition of a manufacturing defect is essentially identical to that contained in the Restatement (Second), i.e., strict liability is owed to the injured party for any injuries caused by a manufacturing defect of the product.[9]  Id.

          However, in contrast to the principles espoused under the Restatement (Second) of Torts, claims asserting a design defect or a failure to warn are to be analyzed with reference to negligence principles and concepts delineated under the Restatement (Third) of Torts.[10]  Id.

          For example, under design defect cases governed by the Restatement (Third) of Torts, the strict liability analysis is altered by the inclusion of negligence-based principles, including consideration of the viability of a “reasonable alternative design.”[11]  Id. citing Restatement (Third) of Torts § 2 (1998). More specifically, the Restatement (Third) of Torts: Products Liability, § 2(b) states, in pertinent part, that a product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and that the omission of the alternative design renders the product not reasonably safe.

          Stated otherwise, while the analysis of design defect cases under the Restatement (Second) of Torts focuses on the actual design of the product, the basis for liability under the Restatement (Third) of Torts in this context includes a consideration of the reasonableness of the defendant’s conduct.[12]   Bugay supra at p. 144.  Essentially, while Restatement (Second) standard focuses on an intended user making an intended use of the product, the Restatement (Third) places the emphasis of the analysis on the foreseeable risks of harm and whether an alternative design could have minimized or eliminated that risk.[13]  Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359, 365 (E.D. Pa. 2010).

          Another difference with the Restatement (Third) of Torts in the products liability context is that, under Restatement (Third) analysis, the plaintiff’s own acts or omissions, i.e., contributory negligence, are made an important part of the analysis of whether or not a product should be determined to be defectively designed.[14]  Id.

          Overall, with the movement away from strict liability towards a more negligence-based analysis in the Restatement (Third) of Torts, it would appear that most defendants in products cases would advocate for the adoption and application of the Restatement (Third) standard.   In contrast, most plaintiffs would likely favor the strict liability analysis under the Restatement (Second). 

          It should be noted, however, that the emphasis in the Restatement (Second) that the plaintiff be an intended user of the product serves to bar any recovery to bystanders injured by a product thereby making the Restatement (Third) a more favorable standard for that particular class of plaintiffs.

          Overall, there can be no dispute that, with the substantive differences between the two standards, the decision on which standard should be applied could have a significant impact on the admissibility of evidence and, consequently, the outcome of particular products liability cases.

How The Split of Authority Developed

          Pennsylvania courts, up until recently, have consistently followed the doctrine of stare decisis and have applied the Restatement (Second) of Torts analysis in products liability cases since as far back as 1966.  However, a recent slew of federal court decisions attempting to predict which Restatement of Torts the Pennsylvania Supreme Court would adopt if presented with the issue again has left this area of the law filled with unfortunate uncertainty and confusion.

          These efforts by the federal courts to predict how the Pennsylvania Supreme Court would address the Restatement (Second) versus the Restatement (Third) issue may have been borne out of signals from the Pennsylvania Supreme Court itself that perhaps the time has come to consider Restatement (Third) of Torts products liability standard as the law of the land.

          For example, as far back as 2003, Pennsylvania Supreme Court Justice Thomas G. Saylor, in his concurring opinion in the case of Phillips v. Cricket Lighters,[15] 841 A.2d 1000 (Pa. 2003). criticized the “ambiguities and inconsistencies” that had arisen in recent times with the Restatement (Second) analysis and stated that Pennsylvania’s products liability law “demonstrate[d] a compelling need for consideration of reasoned alternatives, such as are reflected in the position of the Third Restatement.”[16] Id. at 1000 [bracket inserted here].

          Yet, through at least 2008, the Pennsylvania Superior Court and the Pennsylvania Supreme Court had repeatedly rejected requests for the adoption of the Restatement (Third) analysis in several products liability cases.[17]  Bugay supra at p. 146-147 citing with “See” signal DeSantis v. Frick Co.,745 A.2d 624 (Pa. Super. 1999);  Phillips v. Cricket Lighters, supra, and with “See also” signal Bugosh v. I.U. N.A., Inc., 942 A.2d 897 (Pa. 2008). 

          Then in 2008, the Pennsylvania Supreme Court agreed to hear the appeal in the case of Bugosh v. I.U. North America, Inc. to specifically address the issue of whether the Restatement (Third) of Torts should be adopted in the products liability context.[18]  942 A.2d 897 (Pa. 2008) The Superior Court in Bugosh had refused to overrule “established authority” supporting the application of the Restatement (Second) and rejected the defendant’s assertion that the Restatement (Third) should be adopted.

          While this issue was pending before the Pennsylvania Supreme Court in Bugosh, but not yet decided, the same issue came before the United States Third Circuit Court of Appeals in the case of Berrier v. Simplicity Manufacturing, Inc.[19]  Bugay supra at p. 140 citing Berrier, 563 F.3d 38 (3d Cir. 2009).  The Third Circuit Court of Appeals boldly predicted in Berrier that the time had come where the Pennsylvania Supreme Court would indeed adopt the Restatement (Third) of Torts as the new standard to apply in products cases.[20]  Berrier, 563 F.3d at 53-54.

          However, in June of 2009, the Pennsylvania Supreme Court dismissed the appeal in the Bugosh case as improvidently granted and never reached the issue of whether or not to adopt the Restatement (Third) of Torts.[21]  971 A.2d 1228, 1229 (Pa. 2009).  In that decision to dismiss the appeal, Justice Saylor again voiced his desire to adopt the Restatement (Third) in a lengthy and strongly worded dissent.[22]  Id. at 1241 (Saylor, J., dissenting).

          The prediction by the Third Circuit Court of Appeals in Berrier followed by the dismissal of the appeal in Bugosh created confusion amongst the Pennsylvania federal district court judges who faced the same issue thereafter.[23]  Bugay supra at p. 148. After Bugosh, federal district court judges across the Commonwealth of Pennsylvania, with some of them even from the same district court bench, began to diverge on the question of which Restatement to follow. 

          Then, in its more recent decision in 2011 on the issue in the case of Covell v. Bell Sports, Inc.,[24]  651 F.3d 357, 365 (3d Cir. 2011) the Third Circuit again predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) if squarely faced with the issue.  The Third Circuit seemed to stand fast to this position again in a footnote contained in its denial of an appeal in the case of Sikkelee v. Precision Automotive.[25]   See 2012 WL 5077571 (3d Cir. 2012).  Since the issuance of the Covell decision by the Third Circuit Court of Appeals reiterating this prediction, the lower federal courts have continued to issue conflicting decisions on which Restatement analysis to apply in products cases.

          In 2011, the Pennsylvania Supreme Court issued its decision in Schmidt v. Boardman Co.,[26] 11 A.3d 924 (Pa. 2011) in which the court acknowledged that “foundational problems” existed in Pennsylvania products liability law based upon the Restatement (Second) of Torts.[27]  11 A.3d at 940–41.  However, the court noted that the case before it was not selected to address those “foundational concerns.”[28]  Id.   As such, the debate was not concluded in that case. 

          Yet, a study of the jurisprudence on this issue reveals that, in 2012, the Pennsylvania Supreme Court did have another opportunity to address the issue in the case of Beard v. Johnson & Johnson, Inc.[29]   41 A.3d 823 (Pa. 2012);  see also Schmidt v. Boardman Co., 608 Pa. 327, 11 A.3d 924, 941 (Pa.2011) (“Notwithstanding the Third Circuit's prediction, however, the present status quo in Pennsylvania entails the continued application of Section 402A of the Restatement Second, subject to the admonition that there should be no further judicial expansions of its scope under current strict liability doctrine.”)    In Beard, the Pennsylvania Supreme Court again chose not to adopt the Restatement (Third) as had been repeatedly predicted by the Pennsylvania federal appellate court.  In the Beard decision, Pennsylvania Supreme Court Justice Max Baer clearly stated that “the current law of Pennsylvania….is §402A of the Restatement (Second) of Torts.”[30]  Id. at 839;  see also Bugay supra at p. 148-149 citing Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa. 2009) as another example of a case in which the Supreme Court did not criticize the application of the Restatement (Second) analysis to the case presented.

          But the Beard decision was not a definitive decision on the issue as it sent out some mixed signals from Justices on Pennsylvania’s highest court.  In his majority opinion in Beard, Justice Thomas G. Saylor, joined by Chief Justice Ronald D. Castille along with Justices J. Michael Eakin and Joan Orie Melvin, wrote in a footnote, "It may be cogently argued that risk-utility balancing is more legitimately assigned to a jury," referring to the approach endorsed by the Restatement (Third) of Torts.[31]  41 A.3d 838, n. 18.

          Also, Justice Baer filed a concurring opinion in Beard, which Justices Debra Todd and Seamus P. McCaffery joined, in which he attempted to "distance" himself from what he viewed as Justice Saylor's rejection of the standard in Section 402A of the Restatement (Second) calling for a risk-utility analysis to be performed by judges.[32]  Id. at 839.

          As noted in greater detail below, there has developed a split of authority in each of the branches of the federal district courts of Pennsylvania.  While some of the federal district court judges have opted to follow the most recent pronouncement on the issue by the Pennsylvania Supreme Court in the Beard case favoring the Restatement (Second) analysis, still other federal court judges believe they are duty bound to follow the contrary Third Circuit’s predictions in the Berrier and Covell decisions as being binding precedent upon them in favor of the application of the Restatement (Third) standards until a subsequent, contrary decision is handed down by a Pennsylvania state appellate court.

The U.S. Federal Court for the Eastern District of Pennsylvania

          In a March of 2010 decision in the case of Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359, 364-65 (E.D. Pa. 2010), Judge Petrese B. Tucker of the Eastern District Federal Court of Pennsylvania, noting that, as of that time, the Pennsylvania Supreme Court had dismissed the appeal in Bugosh without deciding the issue, opted to follow the Third Circuit Court of Appeals reference to the Restatement (Third) in Berrier as “binding precedent.” In so ruling, Judge Tucker cited Richetta v. Stanley, 661 F.Supp.2d 500 (E.D. Pa. 2009 Golden, J.), and Martinez v. Skirmish, U.S.A., Inc., 2009 WL 1437624 (E.D. Pa. 2009 Padova, J.) with approval.  The Third Circuit’s prediction on the adoption of the Restatement (Third) was also followed by Judge William H. Yohn, Jr. in Xia Zhao v. Skinner Engine Co., 2:11-CV-07514-WY, 2012 WL 5451817 (E.D. Pa. 2012).

          Other judges in the Eastern Federal District of Pennsylvania have come to the contrary decision that Section 402A of the Second Restatement remains the law of Pennsylvania in light of the fact that the Third Circuit's prediction that the Pennsylvania Supreme Court will adopt the Restatement (Third) as the law of the land has not come to pass.  Thompson v. Med-Mizer, Inc., 10-CV-2058, 2011 WL 1085621 (E.D. Pa. 2011 Gardner, J.)(“This court is not required to follow the Third Circuit's prediction where ‘the state's highest court issues a decision contradicting that prediction or state intermediate appellate court's decisions subsequently indicate that prediction has not come to pass.’ ”) citing Sweitzer v. Oxmaster, Inc., 2010 WL 5257226, at *3–4 (E.D.Pa. 2010 Pratter, J .) and Durkot v. Tesco Equipment, LLC, 654 F.Supp.2d 295, 298–299 (E .D. Pa.2009 Hart, M.J.). 

          In a more recent decision, Eastern District magistrate judge Henry S. Perkin also referred to the Restatement (Second) analysis in the case of Carpenter v. Shu-Bee's, Inc., CIV.A. 10-0734, 2012 WL 2740896 (E.D. Pa. 2012 Perkin, M.J.).

The U.S. Federal Court for the Western District of Pennsylvania

          This split of authority is also evidenced in the Western District of Pennsylvania. Those Pennsylvania Federal Western District Court judges who have presently chosen to follow the Restatement (Second) in products liability cases contrary to the Third Circuit's analysis include Judge Nora Barry Fischer in Gross v. Stryker, 858 F.Supp.2d 466 (W.D.Pa. 2012), Judge Arthur J. Schwab of the Western District in both Konold v. Superior International Industries, 2012 WL 5381700 (W.D.Pa. 2012), and Schif v. Hurwitz, 2012 WL 1828035 (W.D.Pa. 2012).

          The Western Federal District Court Judges who have chosen to instead apply the Restatement (Third) under the Third Circuit's predictions in the Berrier and/or Covell decisions include Judge Mark R. Hornak of the cases of Sansom v. Crown Equipment, 2012 WL 3027989 (W.D.Pa. 2012), and Lynn v. Yamaha Golf-Car, 2012 WL 3544774 (W.D.Pa. 2012), along with Judge Donetta W. Ambrose in Zollars v. Troy-Built, 2012 WL 4922689 (W.D.Pa. 2012), and Judge Maurice Cohill Jr. in Spowal v. ITW Food Equipment Group, C.A. 10-187, ECF No. 52 (W.D.Pa. 2012).

The U.S. Federal Court for the Middle District of Pennsylvania 

          Federal judges in the Middle District of Pennsylvania have also split on the issue of which Restatement should be adopted in products cases.  Middle District Judge A. Richard Caputo has repeatedly ruled that, based upon the Covell court's pronouncement that Berrier remains the controlling formulation of the law for district courts in this Circuit, and given that the Pennsylvania Supreme Court has not issued a decision to the contrary, the Restatement (Third) of Torts should be applied in Pennsylvania Federal Middle District products liability cases as repeatedly predicted by the Third Circuit Court of Appeals.  See Vaskas v. Kenworth, 3:10 CV-1024, 2013 WL 101612  (M.D. Pa. 2013 Caputo, J.);  Giehl v. Terex Utilities, CIV.A. 3:12-0083, 2012 WL 1183719 (M.D. Pa. 2012 Caputo, J.).

          Meanwhile, Judge John E. Jones III of the Middle District issued a contrary decision in the case of Sikkelee v. Precision Automotive, 876 F.Supp.2d 479 (M.D.Pa. 2012), in which he chose to instead follow the Restatement (Second) in products liability cases contrary to the Third Circuit's predictions.  In Sikkelee, Judge Jones respectfully noted that federal district courts are not required to follow predictions by the Third Circuit where that prediction does not appear to have been realized in state court precedent.

          In the appeal of Judge Jones’ decision in Sikkelee, the Third Circuit again noted in its own en banc decision denying a petition for clarification on the appeal that federal district courts in Pennsylvania should continue to apply the Third Restatement.[33]  2012 WL 5077571 (3d Cir. Oct. 17, 2012)(en banc) citing Covell, supra, and Berrier, supra.

Pennsylvania State Courts

          With the law being in a state of flux and the federal court decisions creating a maze of uncertainty, litigants are required to monitor the status of this issue with the Pennsylvania Supreme Court in order to determine how this issue may  ultimately play out. 

          As noted above, the most recent, on-point pronouncement by the Pennsylvania Supreme Court on the Restatement (Second) versus (Third) debate is the court’s decision in Beard v. Johnson & Johnson,[34] 41 A.3d 823 (Pa. 2012) in which the court reiterated, as it has since 1966, that the standards set forth in § 402A of the Restatement (Second) of Torts are to be applied in Pennsylvania products liability cases.

           In its more recent decision in the case of Reott v. Asia Trend, Inc.,[35]  55 A.3d 1088 (Pa. Nov. 26, 2012) a shorthanded Pennsylvania Supreme Court[36]  Justice Joan Orie Melvin was suspended from the court in 2012 to address criminal allegations filed against her pertaining to charges that she used legislative and judicial staff to perform work on her campaign for her seat on the Pennsylvania Supreme Court bench. issued a 5-1 decision recognizing that "highly reckless" conduct is an affirmative defense in products liability cases under which defendants could attempt to avoid liability by showing that a plaintiff's highly reckless conduct was the sole or superseding cause of the plaintiff's injuries.  In so ruling, the majority, in an opinion written by Justice Max Baer, relied upon Section 402A of the Restatement (Second) of Torts. 

          Accordingly, the Reott decision can be read as lending further support to the proposition that the Restatement (Second) remains the law of the land in Pennsylvania products cases.  However, it should also be noted that Reott was analyzed as a manufacturing defect case and both the Second Restatement and Third Restatement are in agreement that strict liability applies in manufacturing defect cases.  The conflict between the two Restatements arguably requires a square decision by the Pennsylvania Supreme Court in a design defect case to finally conclude the matter once and for all.

          It is also noted that, as of the writing of this article in January of 2013, the Pennsylvania Supreme Court has granted allocatur to hear the appeal in the case of Lance v. Wyeth,[37] 15 A.3d 429, 430 (Pa. 2011) in which it may have yet another opportunity to squarely address the Restatement (Second) versus (Third) issue.  The hope remains that the Wyeth court will tackle and finally resolve the issue once and for all when it announces its decision.[38]  A concern in this regard is that the Pennsylvania Supreme Court remains short one Justice on account of Justice Orie Melvin’s current suspension from the bench which could lead to an equally split decision by the Pennsylvania Supreme Court on this all-important issue.  A plurality decision in this regard will do little to end the dispute and would unfortunately represent a missed opportunity resolve this debate once and for all. 

UPDATE:

The Pennsylvania Supreme Court has accepted an appeal in the case of Tincher
v. Omega Flex, No. 842 MAL 2012 (Pa. March 26, 2013) to specifically address
the issue of whether the Restatement (Second) or the Restatement (Third)
standards govern Pennsylvania products liability cases.

In its Order accepting the appeal, the Court wrote, in pertinent part, as
follows:


"AND NOW, this 26th day of March 2013, the Petition for Allowance of Appeal
is GRANTED, LIMITED TO the issue,..slightly rephrased, [as]:

Whether this Court should replace the strict liability analysis of Section
402A of the Second Restatement with the analysis of the Third Restatement.

In addition, the parties are directed to brief the question of whether, if
the Court were to adopt the Third Restatement, that holding should be
applied prospectively or retroactively." [Bracket inserted].

--Daniel Cummins, Foley, Comerford & Cummins

This article was originally published in the Westlaw Journal:  Automotive, Vol. 32, Issue 17 (Feb. 12, 2013).

---

[1] See Sikkelee v. Precision Automotive, Inc., 876 F. Supp. 2d 479, 489 (M.D. Pa. 2012 Jones, J.).

[2] See Samson v. Crown Equipment, 2:10-CV-0958, 2012 WL 3027989 (W.D. Pa. 2012 Hornak, J.).

[3] Restatement (Second) of Torts § 402A (1965).

[4] See Arthur L. Bugay & Craig L. Bazarsky, The Future of Pennsylvania Products Liability as Applied by Federal and State Courts: Covell v. Bell Sports, Inc.  Volume LXXXIII, No. 4 The PA Bar Assoc. Quarterly p. 139, 140 (October 2012) citing  Webb v. Zern, 220 A.2d 853 (Pa.).

[5] Bugay, supra at p. 143 citing with “See” signal Daumbacher v. Mallis, 485 A.2d 423, n. 6 (Pa.Super. 1984) and Surace v. Caterpillar, Inc. 111 F.2d 1039 (3d Cir. 1997).

[6] Id.

[7] Id.

[8] Id. [Citations omitted].

[9] Id.

[10] Id.

[11] Id. citing Restatement (Third) of Torts § 2 (1998).

[12] Bugay supra at p. 144.

[13] Hoffman v. Paper Converting Mach. Co., 694 F. Supp. 2d 359, 365 (E.D. Pa. 2010)

[14] Id.

[15] 841 A.2d 1000 (Pa. 2003).

[16] Id. at 1000 [bracket inserted here].

[17] Bugay supra at p. 146-147 citing with “See” signal DeSantis v. Frick Co.,745 A.2d 624 (Pa. Super. 1999);  Phillips v. Cricket Lighters, supra, and with “See also” signal Bugosh v. I.U. N.A., Inc., 942 A.2d 897 (Pa. 2008).

[18] 942 A.2d 897 (Pa. 2008)

[19] Bugay supra at p. 140 citing Berrier, 563 F.3d 38 (3d Cir. 2009).

[20] Berrier, 563 F.3d at 53-54.

[21] 971 A.2d 1228, 1229 (Pa. 2009).

[22] Id. at 1241 (Saylor, J., dissenting).

[23] Bugay supra at p. 148.

[24] 651 F.3d 357, 365 (3d Cir. 2011).

[25] See 2012 WL 5077571 (3d Cir. 2012)

[26] 11 A.3d 924 (Pa. 2011).

[27] 11 A.3d at 940–41.

[28] Id.

[29] 41 A.3d 823 (Pa. 2012);  see also Schmidt v. Boardman Co., 608 Pa. 327, 11 A.3d 924, 941 (Pa.2011) (“Notwithstanding the Third Circuit's prediction, however, the present status quo in Pennsylvania entails the continued application of Section 402A of the Restatement Second, subject to the admonition that there should be no further judicial expansions of its scope under current strict liability doctrine.”)

[30] Id. at 839;  see also Bugay supra at p. 148-149 citing Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa. 2009) as another example of a case in which the Supreme Court did not criticize the application of the Restatement (Second) analysis to the case presented.

[31] 41 A.3d 838, n. 18.

[32] Id. at 839.

[33] 2012 WL 5077571 (3d Cir. Oct. 17, 2012)(en banc) citing Covell, supra, and Berrier, supra.

[34] 41 A.3d 823 (Pa. 2012).

[35] 55 A.3d 1088 (Pa. Nov. 26, 2012).

[36] Justice Joan Orie Melvin was suspended from the court in 2012 to address criminal allegations filed against her pertaining to charges that she used legislative and judicial staff to perform work on her campaign for her seat on the Pennsylvania Supreme Court bench.

[37] 15 A.3d 429, 430 (Pa. 2011)

[38] A concern in this regard is that the Pennsylvania Supreme Court remains short one Justice on account of Justice Orie Melvin’s current suspension from the bench which could lead to an equally split decision by the Pennsylvania Supreme Court on this all-important issue.  A plurality decision in this regard will do little to end the dispute and would unfortunately represent a missed opportunity resolve this debate once and for all.

Tomorrow's Guest Blogger: Daniel Cummins

Daniel E. Cummins, Esquire is a partner in Foley, Comerford & Cummins in Scranton, PA with over 15 years of insurance defense experience.  Cummins has focused his practice on defending motor vehicle accident liability cases and UIM/UM arbitration matters along with premises liability and products liability cases.  Heis also routinely summoned by his clients to handle matters involving insurance coverage questions and insurance subrogation claims.

Cummins is a cum laude graduate of Villanova University (’90, B.A., English) after which he attended the Dickinson School of Law (’93, J.D.) and completed his law school studies at the University of London Faculty of Laws in London, England (Spring, ’93).

Cummins is an award-winning columnist for, among other publications, Pennsylvania Law Weekly.  He blogs regularly at Tort Talk and has been named a "Lawyer on the Fast Track" and a "Super Lawyer-Rising Star."

Alberto Bernabe: "Play Ball!...and Change the Approach to Baseball Torts"

          As the spring approaches, the attention of many sports fans turns to baseball.  Fans are looking forward to the beginning of the major league season.  Parents (including myself) are starting to take their kids to little league practice.  Baseball.  It is the great American pastime.  It is also the source of a lot of interesting litigation that brings into question some basic principles of tort law.

          Many baseball related cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the poorly chosen term “primary assumption of the risk.”  Unfortunately, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.

          Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.

          In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury.  In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game.  Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims.  

          I think those arguments miss the point.  Granted; risk, danger and injuries are a part of life, and of baseball.  However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with.  You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.   

          The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity.  We have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection.  That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.

          Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases.  On the other hand, I am sure it is not true in all cases, and it is those cases that matter.

          The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.

          The cases involving spectators are even more problematic.  

          Just a few days ago, this blog reported on a case from Idaho in which the court declined to adopt what it called “the baseball rule” which it described as a rule that releases baseball park operators from liability based on the notion that spectators assume the risk of being hit by foul balls.  Many jurisdictions do follow this notion, usually again referring to it as the confusing concept of “primary assumption of the risk.”

          The confusion starts because it is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct. Those members of the public who sit behind home plate (and half way to first and third bases) do not assume the risk and the defendants do have a duty to protect them.  

          The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense that does not challenge an element of the cause of action’s prima facie case.

          Assumption of the risk is a defense based on an evaluation of the plaintiff’s conduct in order to determine if he or she voluntarily decided to undertake a known risk.  However, the so–called “primary assumption of the risk” doctrine has nothing to do with an evaluation of the plaintiff’s conduct.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  In other words, the application of the concept of primary assumption of the risk is simply another way of asking whether the defendant owes a duty to the plaintiff.  

           When applied to baseball, the policy question should be answered the way the court in Idaho answered it recently.   An operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.  This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.

          This approach will yield good results not only in spectator injury cases but also in other sports cases.  

          Play ball!

--Alberto Bernabe, Professor, The John Marshall Law School

James Beck: "Using Reott's Shiny New Strict Liability Defense"

          In Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012), the Pennsylvania Supreme Court once again dodged the existential question of Second versus Third Restatement, because the plaintiff’s manufacturing defect claim was subject to a “strict” liability standard even under the Third Restatement.  See Id. at 1101-02 (Saylor, J. concurring) (discussing how “strict products liability was originally fashioned with manufacturing defects in mind”).  Instead the court addressed, for the first time, the role that plaintiff conduct played in proof of causation in a strict liability case under Restatement (Second) of Torts §402A (1965).

          In Reott the product, a tree stand intended as a hunter’s aerial perch, was manufactured without its proper double stitching.  When the plaintiff attempted to “set” the tree stand (remove slack from the straps) by bouncing on it, the stand collapsed and the plaintiff fell to the ground.  55 A.3d at 1090-91.  At trial, the plaintiff received a directed verdict on the manufacturing defect, which was essentially uncontested.  Id. at 1091. The defendant contested causation, arguing that the plaintiff’s method of setting the tree stand, not the defect, had caused the accident.  Id.  The plaintiff claimed that under strict liability, all evidence of his conduct was inadmissible.  The trial court allowed the jury to consider the plaintiff’s conduct as evidence of causation:

The court . . . permitted that question [causation] to go to the jury.  [Defendant] presented evidence to the jury that [plaintiff’s] self-taught “setting the stand” maneuver constituted highly reckless conduct, which negated . . . the defect in the [product]. . . .  [T]he jury returned a verdict in favor of [defendant].

Id.  The Superior Court reversed, holding that “the evidence introduced at trial was insufficient as a matter of law to support [defendant’s affirmative defense of highly reckless conduct.  Id. at 1093.

          At the Supreme Court, plaintiff argued that in strict liability, it was error to introduce evidence of plaintiff conduct – since comparative negligence was not a defense – even on the question of causation.  The Supreme Court, disagreed and for the first time held that there are circumstances under which plaintiff conduct is admissible in strict liability.

          The defense that the Supreme Court recognized, which had been sporadically permitted in intermediate appellate decisions for decades, was more stringent than mere comparative fault.  First of all, it is an affirmative defense upon which the defendant bears the burden of proof:

[W]e hold that a defendant in a Section 402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted.

Reott, 55 A.3d at 1101.  As an affirmative defense, highly reckless plaintiff conduct must also be pleaded.  Id. at 1100.

          Second, the defense is similar to assumption of the risk (although lacking the element of subjective understanding), in that the “highly reckless” conduct must – if believed by the jury – amount to the “sole cause” of the accident:

This accepted definition of highly reckless conduct exemplifies that a defendant can affirmatively plead and prove “sole cause,” i.e., that a curing of any defect would not have prevented the injury because only the plaintiff's conduct caused the injury; or “superseding cause,” i.e., that the plaintiff acted in such an outrageous and unforeseeable fashion that the conduct superseded any “but for” or legal causation the product contributed to the injuries.

Id. at 1100.  “[B]ecause highly reckless conduct, by its very nature, is that which is essentially unforeseeable and outrageous, if it truly exists in a case, it must be the cause of the injuries sustained.”  Id. at 1101 (emphasis added).

          The Court justified its relatively strict version of a causation defense in strict liability as a way to prevent defendants from turning it into the equivalent of the now-prohibited defense of comparative/contributory fault:

[U]nder Pennsylvania's scheme of products liability, evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence with affirmative proof that a plaintiff's assumption of the risk, product misuse, or, as styled herein, highly reckless conduct was the cause of the injury. Indeed, without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate [strict liability] by demonstrating a plaintiff’s comparative or contributory negligence.

Id. at 1098.  Practically as an afterthought, the Court affirmed, on grounds that the evidence did not establish the defense (there being no proof that a non-defective stand would have collapsed in a similar manner).  Id. at 1101.

          Thus, after Reott defendants now have an affirmative causation defense, based on the plaintiff’s “highly reckless” conduct, in strict liability cases.  To the extent it can make out a jury submissible case, the defense can introduce such conduct by the plaintiff.  The question thus arises, what kind of conduct can meet that test.  The most immediate answer lies in prior precedent, and not just cases asserting reckless conduct in the lower courts.  Given similarities that the Court noted between reckless conduct, superseding cause, and product misuse, conduct creating any of these defenses probably creates them all.

          We suspect that the most significant fact pattern would be that found in Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997).  In Davis the Pennsylvania Supreme Court held as a matter of law that it was unforeseeable for someone to fail to follow explicit product warnings – because it would defy “common sense” and make any warning “meaningless”:

As evidence of foreseeability, Appellant asserts [that] the instruction manual accompanying the [product] cautioned against [what actually occurred in the case]. . . .  We find untenable the proposition that a manufacturer must anticipate that a specific warning not to operate a product without a safety device indicates to a user that the product could, in fact, be operated without the safety feature.  Such conclusion defies common sense.  It also renders warnings of any nature meaningless since the manufacturer must anticipate that the user will engage in the precise conduct which the warning cautions against.

Id. at 190-91 (emphasis added).  A great many product liability suits these days arise from someone (sometimes the plaintiff, sometimes as in Davis, an intermediary such as an employer) disregarding a warning.  Prior to Reott, plaintiffs attempted to exclude such proof as “negligence evidence.”  But given this holding in Davis that failure to follow an express warning is ipso facto unforeseeable, at minimum after Reott a jury submissible, case of “reckless conduct” is created on such facts.

          Other cases have found a variety of other conduct by plaintiffs to be “highly reckless.”  Daddona v. Thind, 891 A.2d 786, 810-11 (Pa. Commw. 2006) (failure to use available safety device, among several other things); Coffey v. Minwax Co., 764 A.2d 616, 621 (Pa. Super. 2000) (use of electricity in presence of inflammable fumes); Frey v. Harley Davidson Motor Co., 734 A.2d 1, 6-8 (Pa. Super. 1999); Madonna v. Harley Davidson, Inc., 708 A.2d 507, 508-09 (Pa. Super. 1998) (driving while intoxicated); Gallagher v. Ing, 532 A.2d 1179, 1182 (Pa. Super. 1987) (same); Foley v. Clark Equipment Co., 523 A.2d 379, 394 (failure to watch where plaintiff was driving); Keirs v. Weber National Stores, Inc., 507 A.2d 406, 409 (Pa. Super. 1986) (not changing out of gasoline-soaked clothing); Gottfried v. American Can Co., 489 A.2d 222, 227 (Pa. Super. 1985) (sticking hand without looking into jagged container); Bascelli v. Randy, Inc., 488 A.2d 1110, 1114 (Pa. Super. 1985) (speeding in excess of 100 m.p.h.); Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 542-45 (3d Cir. 2007) (gross failure to maintain product) (applying Pennsylvania law); Wilson v. Vermont Castings, Inc., 170 F.3d 391, 395-96 (3d Cir. 1999) (failure to read owner’s manual; standing near open flame in loose clothing).  Defendants ought to be able to assert the Reott defense, and thus expose the jury to a plaintiff’s product-related misconduct, in any case presenting analogous facts – provided that the defendant can create a jury question as to the existence of the facts.

          This is not to say that, in any such case, a defendant is necessarily entitled to prevail.  The “highly reckless” conduct defense, as articulated in Reott, appears to be a rather demanding defense.  But at least until Pennsylvania formally abandons its extremely strict version of strict liability, evidentiary hurdles exist that plaintiffs exploit to exclude “negligence” evidence.  Until Reott, plaintiffs at least had an argument that a plaintiff’s conduct, even when bearing on causation, was such evidence – because in other circumstances it could also be used to prove comparative/contributory fault.  After Reott, the dispute in no longer whether such evidence is relevant, but only whether the facts establish sufficient recklessness.  That, at least, is a step forward.

--James Beck; Reed Smith, Philadelphia, PA; Drug & Device Law Blog

Blogger Guest Blogger Series

Starting tomorrow, we begin a series for guest bloggers who already blog on torts at other sites.  We have a nice mix of plaintiff-oriented and defense-oriented bloggers.  The posts will always appear on Fridays, but not necessarily consecutive Fridays.  Enjoy!

The first in the new guest blogger series is authored by James Beck of Drug and Device Law Blog.  Beck is counsel in Reed Smith's Philadelphia office.  He handles complex personal injury and product liability litigation. He has overseen the development of legal defenses, master briefs, appellate briefs, and dispositive motions in numerous high-profile mass torts.  He has also filed more than 60 appellate amicus curiae briefs, mostly on product liability issues.  In 2011, he received the Product Liability Advisory Council's John P. Raleigh Award, the highest honor given to an organization member. He is the lead author of the ALM treatise Drug and Medical Device Product Liability Litigation Deskbook.  Since 2006, Mr. Beck has been the lead blogger and co-host of the "Drug and Device Law Blog," which has been awarded the ABA's "Top 100" legal blog status for each of the last four years.

--SBS & CJR

Leslie Kendrick: "The Impossibility of Impossibility Preemption"

          When the Supreme Court hears oral argument in Mutual Pharmaceutical Co. v. Bartlett, it will embark on its third elaboration of “impossibility preemption” in the prescription-drugs context.  This line of cases is reshaping preemption doctrine, and it is doing so with little regard for a basic legal idea: the distinction between a property rule and a liability rule.

          The question at issue is whether it is “impossible” for prescription drug manufacturers to comply with both Food & Drug Administration requirements and state tort law.  State tort liability for design defect or failure-to-warn is predicated on a judgment that a drug or drug label was not designed safely.  But manufacturers generally cannot alter drugs or labels without FDA approval.  Thus, manufacturers argue, it is impossible for them to comply with both tort law and FDA requirements.

          The Supreme Court implicitly accepted this view in 2009’s Wyeth v. Levine, when it found no impossibility preemption of a failure-to-warn claim against Wyeth.  The Court rested this conclusion on the view that, under FDA regulations, Wyeth could have changed its drug’s warning label without prior FDA approval.  Wyeth thus could have avoided tort liability while complying with FDA rules. 

          This analysis was always dubious: labeling changes ultimately require FDA approval, and thus a manufacturer’s power to make unilateral changes is short-lived and mostly hypothetical.  But there soon arose a side effect which the majority in Wyeth, led by Justice Stevens, surely neither foresaw nor intended.  To the extent that the power to make unilateral changes exists at all, it is enjoyed only by brand-name manufacturers and not by makers of generic drugs.

          Thus when, in PLIVA, Inc. v. Mensing, the manufacturer of a generic drug made an impossibility preemption claim, the Court sprang the trap it had set in Wyeth.  If impossibility was avoided only to the extent that manufacturers could change their labels, then impossibility must exist with respect to generic drugs.

          In Mutual Pharmaceutical Co. v. Bartlett, the Court is being asked to extend this analysis to preempt some suits against generic manufacturers for design defects.  And the United States, for its part, appears to ask the Court to feel free to endorse this rule for all design-defect claims, for both generic and brand-name drugs, on the theory that no manufacturer can alter the substance of its drug without FDA approval.  What started as a ground for rejecting preemption in Wyeth is now poised to eliminate virtually all tort liability for prescription drug manufacturers, all in the name of “impossibility.” 

          But if we know one thing about tort law, we know that it is not impossible to comply with it and FDA requirements simultaneously.  We know this because drug manufacturers have been complying with both since the passage of the Federal Food, Drug, and Cosmetic Act in 1938.   

         Moreover, anyone briefed in the most basic attributes of tort liability and FDA regulation can explain why.  Tort liability requires manufacturers to pay damages, not to alter their products.  A manufacturer may market a drug as approved while paying tort damages.  The manufacturer has other options, such as seeking to modify a drug or label, or developing improved products.  But it is entirely possible to change nothing and comply with both sets of laws.

          These facts cannot have escaped the Court’s notice but may seem too mundane, or too literal, to matter.  The Court focuses exclusively on the “duty” imposed by FDA and tort rules.  FDA requires a drug or label to have a certain content, and the implication of tort liability is that it should have a different content.  Hence, impossibility. 

          But in focusing on duties to the exclusion of remedies, the Court is disregarding the fundamental distinction between a property rule and a liability rule.  FDA regulation subjects drug manufacturers to a property rule: drugs must conform to FDA requirements or be recalled from the market.  Tort liability, meanwhile, is the classic liability rule: the remedy for breach is the payment of damages. 

          It is no coincidence that FDA’s powers function like a property rule.  The point is for FDA to decide which drugs can be marketed and which cannot.  Nor is it a coincidence that the state tort claims at issue are liability rules.  Tort liability does not enjoin behavior.  It charges a price, without altering other entitlements.   It is not impossible for these two regimes to co-exist.  It’s impossible that they couldn’t.

          From this perspective, it also becomes clear that the so-called “stop-selling” doctrine at issue in Bartlett is not necessary to its resolution.  The First Circuit held that there was no impossibility preemption because the drug manufacturer could comply with both regimes by not selling the drug.  “Stop selling” may be a response when a product faces conflicting injunctions (e.g., “Do X or your product will be recalled,” and, “Do not-X or your product will be recalled.”).  But the whole point of a liability rule is that the manufacturers need not stop selling in order to comply with it.  They can pay and play. 

          This is not to say that no conflict may ever arise between tort law and FDA regulation.  But impossibility is not the right term, under any plausible definition.  It is not physically impossible to comply with both regimes.  There is no inherent logical contradiction in them.  Instead, the question is how much one gets in the way of the other. 

          The question thus involves the other form of implied preemption: obstacle preemption.  The Court rejected obstacle preemption in the context of Wyeth.  Available evidence suggests that Congress, in passing the FDCA, understood tort and FDA regulation not to conflict but to complement each other.  FDA, throughout most of its history, has held the same position.

          And there is good reason to adopt this view.  Given the nature of drug trials and the FDA approval process, there is always a risk of side effects whose gravity only becomes clear after a drug is on the market.  Drug manufacturers are generally in the best position to bear this risk, because they have more information about their drugs than either FDA or consumers and they have the ability to work with FDA to alter a drug or label.  To adopt another Calabresian term, drug manufacturers are the cheapest cost avoider.  Meanwhile, a system that immunizes drug manufacturers provides
suboptimal levels of deterrence.

          We may worry, however, that tort liability will be so costly that it will cause drug manufacturers to raise prices to unaffordable levels, stop developing new products, or withdraw from the market entirely.  Such possibilities could have serious public health consequences, and thus they are germane to the preemption question.   

          But this is an incidental effect of liability, not an indication of impossibility.  To conclude
otherwise would suggest, for example, that the special immunities given to vaccine manufacturers are unnecessary.  If it is impossible for all drug manufacturers to comply with regular FDA regulations and state tort law, then there is no need for special rules that treat the interaction of these two regimes as imposing particularly steep incidental costs on particularly necessary medications. 

          In short, whether tort law and FDA regulation conflict or complement each other is a question not of formalism but of facts on the ground.  Either way, what is happening is not a question of impossibility.  The Wyeth impossibility trap is one of the Court’s own devising, and the Court should extricate itself.

--Leslie Kendrick, University of Virginia School of Law 

Guest Blogger Leslie Kendrick

Today's Guest Blogger is Leslie Kendrick, an Associate Professor at the University of Virginia School of Law.  Kendrick received a B.A. in classics and English as a Morehead Scholar at the University of North Carolina at Chapel Hill. She received her master's and doctorate in English literature at the University of Oxford, where she studied as a Rhodes Scholar. In law school she served as essays development editor for the Virginia Law Review and received numerous awards, including the Margaret G. Hyde Award, the Hardy Cross Dillard Scholarship, the Law School Alumni Association Best Note Award, the Brown Award for Excellence in Legal Writing, the Food & Drug Law Institute H. Thomas Austern Short Paper Award, and the Virginia State Bar Family Law Book Award. Before joining the Virginia's faculty, Kendrick clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and for U.S. Supreme Court Justice David Hackett Souter.  She is currently visiting at UCLA.

Nora Freeman Engstrom: Damage Caps--And Why Fein May No Longer Be Good

Stanford's Nora Freeman Engstrom reconsiders MICRA and its constitutionality (pdf):  Download Torts Prawf Blog -8.

Tomorrow's Guest Blogger: Nora Freeman Engstrom

Nora Freeman Engstrom is an Associate Professor at Stanford Law
School.  Professor Engstrom’s scholarship lies at the intersection of
tort law and professional ethics, and her current work explores the
day-to-day operation of the tort system and particularly the tort
system’s interaction with alternative compensation mechanisms, such as
workers’ compensation and no-fault automobile insurance.  Professor
Engstrom has also written extensively on attorney advertising and law
firms she calls “settlement mills”—high-volume personal injury law
practices that heavily advertise and mass-produce the resolution of
claims.

--CJR

Guest Blogger Robert Rabin: "The Legacy of New York Times v. Sullivan: Time for a Reassessment?"

A soldier is killed in Iraq, serving his country; his grieving father arranges a funeral service and burial in the nearby cemetery of their hometown church; a publicity-seeking religious sect, dedicated to hateful religious and homophobic disparagement, as well as denigration of the U.S. government and its military efforts, pickets the funeral service. Due to this arresting set of factual circumstances, Snyder v. Phelps, an intentional infliction of emotional distress claim by the dead soldier’s father against the leader and members of the sect, was afforded considerable media attention—triggering widespread outrage in support of the victimized father. Despite the outpouring of sympathy, however, when the case reached the U.S. Supreme Court, the Circuit Court of Appeals decision overturning a jury verdict in favor of the plaintiff was affirmed, 8-1, on First Amendment grounds, Snyder v. Phelps, 131 S.Ct. 1207 (2011).

 Snyder is, in fact, an easy case, in my view. When an individual or organized group engages in speech about a matter of public concern, the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) has generated more than a half-century of precedent standing for the proposition that tort victims’ common law rights are substantially limited. The authority of Times—the power of its articulation of the values promoted by free and robust public discourse—has spilled beyond the borders of that Civil Rights-era defamation claim by southern officials against a widely-respected national newspaper to related tort areas of protection of personality: privacy (Time, Inc. v. Hill, 385 U.S. 374 (1967)) and intentional infliction of emotional distress (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).

 Snyder is firmly in that tradition—and it is an easy case because it does not test the limited categories of tort that survive Times restrictions: fighting words and personally threatening harassment. But if that is all one should read into Snyder, the case is of little consequence. On the other hand, if it signals a corrective in the understanding of Times, which went off-course, as I see it, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that is another matter.

 Gertz, which involved allegations of a communist plot to promote claims of police brutality—allegations clearly within the zone of political discourse on a matter of public concern—shifted the focal point of inquiry from the content of defendant’s speech to the status of the victimized plaintiff (in particular, whether plaintiff was a “private figure” or not); providing lesser protection of a defendant’s speech in the latter category of cases. This was, in fact, a sharp divergence from the spirit of Times; in particular, promoting a marketplace of discourse on public issues as central to the meaning of a democratic society.

 Moreover, Gertz rested on insubstantial foundations: the conclusory rationale that “public officials” and “public figures” assumed the risk of defamatory statements by participating in public affairs; and the dubious proposition (treated almost apologetically in a Gertz footnote) that public figures could neutralize defamatory statements by their access to media forums. Whatever the questionable earlier salience of this distinction between public and private figure access to forums of retaliatory speech, in the online era of blogs and Facebook, it is now highly anachronistic.

 But does Snyder in fact signal a revival of the foundational premise of Times protection of speech on matters of public concern? The majority opinion’s invocation of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), emphasizing the purely private nature in that case of defendant’s incorrect attribution to plaintiff of a bankruptcy petition, as a point of contrast from the political protest involved in Snyder (and the concomitant failure to even mention Gertz or private figure considerations in the Snyder opinion), possibly points in that direction.

 And suppose that the Court were to resurrect the promotion of the public marketplace of ideas as the core meaning of Times: Would that signal the demise of unencumbered protection of personality-based tort claims? Not at all. Take as a single example (of many that might be offered), Johnson v. Johnson, 654 A.2d 1212 (R.I.1995), in which an ex-husband loudly proclaimed in a restaurant setting and in the presence of his ex-wife, that she was a whore. Quite correctly, in my view, the Rhode Island court dispatched the First Amendment claim as a defense to the ex-wife’s tort claim. There remains not the slightest reason for affording constitutional protection to the defendant’s indifference to the feelings of the victim in such a case, when it rises to the level of outrageous breach of norms of civility. If Snyder turns out to be a first step towards a revival of a public/private subject matter focal point, then it will stand as an easy case with substantial consequences.

--Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School

Monday's Guest Blogger: Robert Rabin

 
Robert L. Rabin is the A. Calder Mackay Professor of Law at Stanford.  An expert on torts and legislative compensation schemes, Robert Rabin is highly regarded for his extensive knowledge of the history and institutional dynamics of accident law. He is a prolific author on issues relating to the functions of the tort system and alternative regulatory schemes and is the co-editor of a classic casebook on tort law.

Professor Rabin is currently an advisor to the ongoing American Law Institute Restatement of Torts Third project and has been the program director for the Robert Wood Johnson Foundation Program on Tobacco Policy Research and Evaluation, as well as a reporter for the American Law Institute Project on Compensation and Liability for Product and Process Injuries and the American Bar Association Action Commission to Improve the Tort Liability System. He has been a member of the Stanford Law School faculty since 1970.

Guest Blogger Ellen Bublick: "The ALI, Economic Loss Rules, and Convergence"

          In just a few weeks time the American Law Institute’s annual meeting will consider Chapter 10 of the Restatement Third of Torts: Liability for Physical and Emotional Harms.  That chapter, entitled Liability of Those Who Hire Independent Contractors, ably drafted by reporter Ellen Smith Pryor of Southern Methodist University’s Dedman School of Law, is now a tentative draft for approval of the membership. Once approved, the ALI will publish the second volume of the Physical and Emotional Harms Restatement, and torts restatement work will move on to engage issues beyond physical harm.  Next up: the Restatement Third of Torts: Economic Harms and Related Wrongs. Notably, this September, meetings will commence on the restarted project under the leadership of new Reporter Ward Farnsworth of Boston University School of Law.  Looking forward to that work, I commend to torts professors two recent state supreme court cases written by outstanding jurists actively engaged with the issue of liability for economic loss. 

          The first case, from my own home state, is Flagstaff Affordable Housing Limited Partnership v. Design Alliance, Inc., 223 P.3d 664 (Ariz. 2010).  In Flagstaff Affordable, architects designed eight apartment buildings and a community center for a low income housing project.   Eight years after construction was complete, the U.S. Department of Housing and Urban Development filed a complaint that the buildings did not comply with Fair Housing Act accessibility guidelines. The building owner settled with HUD, made revisions to its properties, and filed suit against the architects for economic loss stemming from the misdesign and  remediation.

          The second opinion, Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010), was issued by the Indiana Supreme Court.  In Indianapolis-Marion County Public Library the library hired a general contractor to renovate and expand the library.  The general contractor subcontracted with engineers who provided architectural and engineering services for the project.  After the construction had progressed significantly, concerns were raised about the structural integrity of the project.  The library spent 40 to 50 million dollars to cure these structural defects and in turn filed suit against the engineers for the damages. 

          Both cases involve factually similar causes of action: professional failures in building design led to significant costs incurred by the parties that had undertaken the construction projects. In both cases the outcome was similar—state supreme courts disallowed recovery in tort for the owners’ purely economic losses that stemmed from professional negligence.  And in both cases, economic loss rules took center stage in the reasoning.  However, the analysis in the two cases proceeds along quite different lines.

          The Arizona Supreme Court criticized an “overly broad” formulation of the doctrine and noted the availability of recovery for solely pecuniary loss in a number of contexts.  It differentiated between economic loss in contractual settings and non-contractual cases, and resolved to attend to the need for limitation on recovery for pure economic loss “based on context-specific policy considerations,” in that case the context of construction contracts. The Indiana Supreme Court, on the other hand, adopted a very broad formulation of the economic loss rule—viewing the economic loss rule as a general no-duty rule, subject to context-specific exception. As the Indiana Supreme Court stated, “[O]ur default position in Indiana is that in general, there is no liability in tort for pure economic loss caused unintentionally.”  However, the court then noted that this general rule is subject to appropriate exceptions “such as (for purposes of illustration only) lawyer malpractice, breach of duty of care owed to a plaintiff by a fiduciary, breach of a duty to settle owed by a liability insurer to the insured, and negligent misstatement.”  Negligent misstatement of an engineer who was party to a web of contracts in which the plaintiff was also a party was not an exception (though in a related case, negligent misrepresentation was actionable to a nonparty to the contract).

          This dispute about starting points—the economic loss rule as an overarching no-duty default limitation from which courts can recognize exceptions or economic loss rules as prudential limits embedded in the duty or scope of liability questions in particular contexts­—hearkens back to a dispute in the first round of Economic Torts Restatement discussions and will no doubt need to be addressed anew this fall.  But as significant as the mode of analysis of these issues is the substantive outcome of the analysis in particular cases.  One might have thought that Restatement Second Section 552 which governs “information negligently supplied for the guidance of others” would have afforded tort recovery in both the Arizona and Indiana cases, and indeed in some similar cases from other jurisdictions, such as Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa 2005), section 552 was invoked to support recovery for architect misrepresentations that resulted in economic loss to a builder. The discordant analysis of these questions among state courts hints at the importance of restatement work. A fascinating empirical paper by Anthony Niblett, Richard A. Posner, and Andrei Schleifer, The Evolution of a Legal Rule 39 J. Legal Stud. 325 (2010), examines the question of whether the law in the area of economic loss in construction contexts is converging to an efficient result, and then stops at the more basic question of whether the law is converging at all. The conclusion to date is that perhaps it is not.  Although few forces unify state tort law, the American Law Institute’s Restatement of Torts is one of the most important, particularly in the area of economic torts. As judges, practitioners and scholars converge to discuss liability for economic loss under the project, one hope is that some convergence of state legal rules will be nearer at hand as well. 

--Ellen Bublick, Dan B. Dobbs Professor of Law, University of Arizona College of Law

 

 

Monday's Guest Blogger: Ellen Bublick

 

Ellen Bublick is the Dan B. Dobbs Professor of Law at the University of Arizona, James E. Rogers College of Law. She served as the 2008-2009 Chair of the Torts and Compensation Section of the Association of American Law Schools, and currently serves as an Advisor to the American Law Institute’s Restatement Third of Torts. She is a coauthor of the leading tort law treatise The Law of Torts (2d ed. forthcoming 2011), with Dan Dobbs and Paul Hayden, and is a coauthor of the sixth edition of the popular casebook Torts and Compensation: Personal Accountability and Social Responsibility for Injury.  Her other books include Cases and Materials on Advanced Torts: Economic and Dignitary Torts—Business, Commercial and Intangible Harms (with Dan B. Dobbs), and A Concise Restatement of Torts (2d edition) on behalf of the American Law Institute. She has participated in national and international symposia on U.S. Tort Law, Foreign Tort Law, the Restatement of Products Liability, and the Restatement of Liability for Physical Injury among other topics. On the basis of her research, Bublick has been invited to speak to audiences which include the National Institute of Justice, the Pennsylvania House of Representatives, the Research Center for Civil and Commercial Jurisprudence of the People’s Republic of China, and the European Group on Tort Law. One of her innovative legal theories was expressly adopted by the Washington Supreme Court in Christensen v. Royal School Dist. No, 160, 124 P.2d 283 (2005). An honors graduate of Duke University and Harvard Law School, Bublick clerked for Judge Walter Cummings on the Seventh Circuit Court of Appeals and practiced law at Mayer, Brown & Platt in Chicago before entering academia.

Guest Blogger Geoffrey Rapp: "Liability for Batted Baseballs"

          In honor of opening day in Major League Baseball two weeks ago, I wanted to dedicate my post to the liability of stadiums for batted balls. 

          Across the land, courts deny recovery to baseball spectators hit by batted balls.  Like most torts professors, I teach this rule in my 1L class.  My casebook covers the rule in connection with the Jones v. Three Rivers Management Corp. case (which, interestingly enough, allowed recovery where a fan was injured due to the unusual architectural features of a brand-new stadium).

          A baseball exhibitor’s only legal duties are to screen the most dangerous areas of the park and to avoid distracting fans from the dangers of batted balls through overly aggressive mascots and other stimuli (sometimes).  Batted balls are an “expected” part of the game, and not a proper basis for a negligence claim absent unusual circumstances.  Even in some tragic and bizarre circumstances, such as when a young girl had her hand speared by a fragment of a broken bat, courts have denied recovery under some form of assumption-of-risk theory or limited-duty rule.

            Why should this well established rule be viewed as the correct one?  Who really loses if baseball operators were forced to pay judgments to injured fans?  Consider what would happen if the rule were abandoned.  Baseball operators would have two choices. 

          First, they could add more netting, Plexiglas barriers, and the like, to protect fans, or perhaps make baseballs more spongy and less likely to cause injury.  This would be a tragic result, no doubt, because fans like to watch the game as it has been played since the days of Abner Doubleday.  The chance to catch a batted ball is part of the “fun” associated with attending a baseball game, and can even be profitable for fans if the ball has historic value.  Similarly, more prominent and regular reminders of the dangers of flying objects, designed to alert fans, would be viewed by most fans as annoying.

          So instead, stadium operators would likely choose not to screen more seating or spongify baseballs.  What they would do is purchase broader liability insurance coverage, and pass the cost of such coverage on to fans in the form of higher ticket prices.  But isn’t that in fact the just result?  If fans want the game to be played the way it always has been, with its attendant risk of injury, should they not also be the ones forced to bear the cost of injury instead of visiting an “overwhelming misfortune” on a single injured spectator?  This loss-spreading rationale was the basis for the move to strict liability in products injury cases spurred by Justice Traynor’s concurring opinion in Escola v. Coca Cola Bottling Plant of Fresno California, and I can identify no reason why the principle should not also be applied in the stands.

          Yet baseball is so much a part of popular consciousness that courts prefer to have an injured spectator bear the risk of loss.  To be sure, baseball fans struck by balls while talking on their cell phones, like this Yankees fan unceremoniously caught on video, should, like drivers who decline to make their cars no-phone-zones, be assigned a fairly large share of the fault under comparative negligence.  But it seems to me that juries should be given the chance to weigh the impact of a fan’s inattention against the dangers to which stadium operates expose their audiences.

          For more on this topic, see 

Adam Epstein, Teaching Torts with Sports 

David Horton, Rethinking Assumption of Risk and Sports Spectators

Geoffrey Rapp, Take Me Out to the Ball Game, to be Injured, in New Mexico

Geoffrey Rapp, When Animals Attack…Are Baseball Stadiums Liable?

 

--Geoffrey Rapp, Professor of Law, University of Toledo College of Law

Monday's Guest Blogger: Geoffrey Rapp

 
Geoffrey C. Rapp is Professor of Law at the University of Toledo College of Law. Professor Rapp is a graduate of Harvard College (AB) (1998) and Yale Law School (JD) (2001).

Rapp graduated Phi Beta Kappa in Economics from Harvard, where he was a Research Assistant at the National Bureau of Economic Research and earned a public school teaching certificate in Social Studies. At Yale Law School, he was a Teaching Fellow and Head Teaching Fellow in the Department of Economics and a Teaching Fellow in the Computer Science Department. He served as a Notes Editor on the Yale Law Journal.

Rapp then clerked for The Honorable Cornelia G. Kennedy, U.S. Court of Appeals for the 6th Circuit, in Detroit, Michigan. Rapp was a Visiting Professor at the University of Utah S.J. Quinney College of Law and has also taught at Wayne State University School of Law and Michigan State University College of Law, and worked in private practice.

Rapp’s research interests include substantive tort law, regulation of business entities and financial markets, the economic aspects of sports law, and the statistical analysis of legal and policy problems. Rapp is a contributor to the Sports Law Blog and has published pieces in The Washington Post, The Hartford Courant, and CNN.com. He has been frequently interviewed by local and national media, including National Public Radio’s Morning Edition, The New York Times, Toronto’s National Post, BBC Radio, The Christian Science Monitor, The Toledo Blade and The Washington Times. Professor Rapp is the author of a monthly column, Diary of a Dad, for the Toledo Area Parent News (circulation 40,000).

Guest Blogger Tom Galligan: "Water, Oil, and Death"

The paralyzing power of the status quo is more evident in law than anywhere else: stare decisis, the difficulty of passing or amending law, and packed legislative agendas.  Of course law ought to be fair, up to date, and consistent.  Sadly what law ought to be is sometimes frustrated by what law is.  When that occurs law distances itself from current social reality, mores, and ultimately the people.  We currently face one of those legal chasms and, to date, all we can manage to do is gawk.  It was just about a year ago today (April 4 versus April 20) that the Deepwater Horizon exploded. 

After a summer of spewing oil, they finally shut it off.  Will the fish ever be the same?  Will commercial fishers recover?  What future damage might the dispersants used to break up the oil cause?  How will the multi-district litigation play out?  What will state courts do?  How well will the Feinberg/BP ADR scheme work?  All of these are interesting, indeed fascinating questions.  We will argue about them.  We will litigate them.  We will analyze them.  And then we will go on with our lives.

But eleven families will not go on with their lives the same way we went on with our lives.  Why?  Because eleven people died when the Deepwater Horizon exploded.  And for the spouses, children, parents, siblings, and children of those eleven, the world won’t ever be even close to the same as it was on April 19.  And what does the law do for them?  As I explained to Congress three times last summer the answer is the law does not do enough.  It does not do nearly enough..  The relevant laws are the Jones Act (because those killed were seamen) and the Death on the High Seas Act (DOHSA) (because they were killed more than three nautical miles offshore).  Both of those statutes were passed in 1920, another era.  As interpreted, neither of them allows recovery for loss of society damages to the survivors of those killed in high seas maritime disasters.  Just what are loss of society damages?  They are compensation for the loss of care, comfort, and companionship caused by the death of a loved one.  They are compensation for the loss of the relationship itself.  The majority of American jurisdictions today do recognize some right to recover for loss of society damages in wrongful death cases but not the Jones Act and not DOHSA.  The Jones Act and DOHSA do allow the survivors of someone killed on the high seas to recover their pecuniary or economic loss but neither allows any recovery for the loss of the relationship itself.  Thus, a surviving spouse may recover loss of economic support or loss of services, like cooking or cutting the lawn, but the survivor recovers nothing for the very real emotional loss of the loved one.  And a parent who is not financially dependent upon a child who is killed on the high seas would recover nothing at all for their child’s death.  Today under the Jones Act and DOHSA the relationship itself between the decedent and his or her spouse, child, or parent is treated as if it has no value. Friends, a spouse, child, or parent who loses a loved one, suffers a very real loss and the law, to be just, must recognize it.  It is not fair not to allow that recovery.  AND, the majority rule on land today IS to allow recovery of loss of society in a wrongful death case.  So the law, as it applies to the eleven families of the eleven killed on the Deepwater horizon is neither fair nor up to date.

Now, there is one notable exception to the rule barring recovery of loss of society damages under DOHSA and that exception points up some current inconsistencies in the law.  In 2000, after the KAL 007 and TWA 800 disasters, Congress retroactively amended DOHSA to provide recovery of loss of society to the survivors of those killed in high seas commercial aviation disasters but for anyone else killed on the high seas, including the eleven workers who died on the Deepwater Horizon, the survivors may not recover for loss of society.  The law should be the same for all.  The Jones Act and DOHSA should provide recovery for loss of society damages.

Of course, tort law is concerned with corrective justice—fairness, consistency, and compensation—but it is also concerned with deterring unsafe behavior posing risks to people, property and the environment.  Law, including tort law, is concerned with holding people accountable.  By not allowing recovery for loss of society the applicable maritime law under compensates.  And, if tort law under compensates, it under deters because it does not hold those responsible accountable for all the real, direct damage they cause.

 Last year the House passed legislation that would have made loss of society damages available for the survivors of those killed in maritime disasters.  The Senate listened, smiled, and promised but it did nothing.

I could go on.  I did when I testified in Congress three times last summer.  I will again in a forthcoming article in the Louisiana Law review (LSU) and at an upcoming conference at a Roger Williams University Maritime Affairs Institute Program on April 13, 2011.  But, for now, let me stop here.  The law should fairly compensate the families of the eleven killed on the Deepwater Horizon.  Being fair—allowing recovery of loss of society damage—would also be up to date and in line with the  majority American rule.  And it would be consistent with the recovery available to the survivors of those killed in a commercial aviation disaster. 

--Thomas C. Galligan, Jr., President, Colby-Sawyer College

Monday's Guest Blogger: Tom Galligan

 

Thomas C. Galligan Jr. is the president of Colby-Sawyer College. He previously served as dean and professor of law at the University of Tennessee College of Law in Knoxville, Tenn., where he also taught Torts and Admiralty.  From 1986 until May 1998, President Galligan taught at the Paul M. Hebert Law Center at Louisiana State University (LSU). At LSU, Galligan was named the Dr. Dale E. Bennett Professor of Law and was honored by the students as the Outstanding LSU Professor six times.  President Galligan has published numerous books and articles on torts and admiralty. His scholarship has been cited in the proposed Restatement (Third) of Torts and by numerous legal scholars. It also has been cited by the United States Supreme Court and other federal and state appellate and trial courts. He has also testified on admiralty issues before committees of the U.S. House and Senate.

President Galligan currently serves as co-chair of the New Hampshire Supreme Court Society Civics Education Task Force and is a commissioner for the New Hampshire Post-Secondary Education Commission. He holds an A.B. from Stanford University, a J.D. from the University of Puget Sound (now Seattle University) School of Law and a L.L. M. from the Columbia University Law School.