Wednesday, October 23, 2024
Call for Co-Signers on SCOTUS Tort Scholars’ Brief on Proximate Causation
The Supreme Court accepted cert on a question in a firearms-related case that threatens to significantly narrow the concept of proximate causation.
Tim Lytton and Hillel Levin are writing a scholars' brief asserting that, under existing principles of tort law, intervening criminal misconduct does not necessarily relieve a firearm manufacturer from liability for harm resulting from misuse of its products by third parties. The brief will argue that under well-established tort doctrine and the text of the Protection of Lawful Commerce in Arms Act (PLCAA), a manufacturer may—depending on the state's approach to proximate cause—be liable if its practices foreseeably increased the risk of criminal misconduct and thus the resulting harm to the plaintiff. A contrary holding by the Court would establish a federal common law of proximate causation with far-reaching implications beyond firearms industry litigation.
The scholars’ brief will be in support of neither party in the case, and it will take no position on the merits of the plaintiff’s claims. The aim is exclusively to prevent the Supreme Court from rendering a decision at odds with longstanding state common law tort doctrine.
If you are willing to consider cosigning the scholars’ brief, please email Tim Lytton at [email protected].
Here are additional details of the case.The U.S. Supreme Court has agreed to hear an appeal in a lawsuit brought by Mexico seeking to hold Smith & Wesson liable for aiding and abetting illegal cross-border firearms trafficking. A U.S. district court dismissed Mexico’s claim on the basis of PLCAA immunity. The First Circuit reversed, finding that Mexico’s allegations that Smith & Wesson engaged in “affirmative and deliberate efforts to create and maintain an illegal market for [its] weapons in Mexico” would, if proven true, constitute aiding and abetting downstream dealers in violating state and federal laws governing the transfer of firearms. Under a statutory provision known as the “predicate exception,” PLCAA immunity does not apply to lawsuits in which a firearm manufacturer “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought….” 15 U.S.C. §7903(5)(A)(iii). Smith & Wesson appealed, and the U.S. Supreme Court granted cert.
On appeal, the U.S. Supreme Court has framed the questions presented as follows:
- Whether the production and sale of firearms in the United States is the "proximate cause" of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.
- Whether the production and sale of firearms in the United States amounts to "aiding and abetting" illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.
(Emphasis added.)
The framing of both questions signals the Court’s intention to reject Mexico’s claims. First, Mexico’s allegations that Smith & Wesson aided and abetted illegal firearm transfers by downstream sellers means that, although a jury might find that Smith & Wesson’s conduct was a proximate cause of harm to Mexico, it was certainly not “the” (i.e., sole) proximate cause of harm, given the criminal misconduct of the downstream sellers. Second, the Court’s characterization of Mexico’s allegations—that gun makers “know” that some of their products are unlawfully trafficked by downstream sellers—amounts to reckless disregard, which falls short of aiding and abetting. Additionally, the fact that the Supreme Court is hearing an appeal in the case from the denial of a motion to dismiss signals an intention to relieve Smith & Wesson from the obligation to submit to discovery and defend itself in trial court proceedings.
Aside from the implications of this appeal for Mexico’s claims or lawsuits against the gun industry more generally, the first question presented raises the possibility that the U.S. Supreme Court could render a broad holding regarding the law of proximate cause in cases involving intervening criminal misconduct. Under state common law in many jurisdictions, intervening criminal misconduct does not relieve a defendant of liability where the defendant’s wrongdoing foreseeably increased the risk of the criminal misconduct. See Restatement (Third) of Torts: Physical & Emotional Harm (2010)§ 19 cmt. c (“If the third party's misconduct is among the risks making the defendant's conduct negligent, then ordinarily plaintiff's harm will be within the defendant's scope of liability.”) § 34 cmt. e (“In some cases, the risk that makes conduct tortious is one created by another person's conduct. … In such cases, the intervening act and the attendant harm are within the scope of the defendant's liability.”) A Supreme Court holding that—as a matter of law—relieves defendants of liability for injury caused by third-party criminal misconduct would contradict state common-law tort doctrine in many jurisdictions.
The scholars’ brief will argue that the Supreme Court should decide the appeal Mexico v. Smith & Wesson without creating a restrictive federal common-law of proximate cause regarding intervening criminal misconduct. The brief will include the following arguments based on statutory interpretation of PLCAA and accepted principles of state tort law.
- PLCAA’s text and structure explicitly contemplate holding gun manufacturers liable for injuries resulting from third-party criminal misuse of their weapons when a gun manufacturer knowingly violates laws governing the sale and marketing of firearms and the violation was a proximate cause of harm.
- PLCAA’s numerous definitions do not include a definition of the term “proximate cause,” which requires that the term be defined according to its accepted common law meaning, which varies among different states. Moreover, PLCAA’s explicit endorsement of “federalism, State sovereignty” and “hundreds of years of common law” supports reliance on and respect for the various state common-law doctrines of proximate cause.
- As reflected in the latest restatement of torts, in some jurisdictions, third-party criminal misconduct does not relieve a defendant of liability for resulting injury to a plaintiff if the defendant’s wrongdoing foreseeably increased the risk of the criminal misconduct and the subsequent harm to the plaintiff.
Lytton and Levin hope to include many leading U.S. tort scholars as cosigners. They will circulate a final draft of the brief to those who express interest before the November 25 filing deadline.
https://lawprofessors.typepad.com/tortsprof/2024/10/call-for-co-signers-on-scotus-tort-scholars-brief-on-proximate-causation.html