Two issues of importance to product liability lawyers—and indeed the public at large—have dominated recent news cycles: the opioid abuse crisis and the scourge of school gun violence. When crises like these arise, the question of who is responsible for the resulting harms is typically resolved in the courts, but often turns on thorny issues of public policy and the political will of legislators. For certain industries, like gun and vaccine manufacturers, Congress has sought to shield them from exposure in the courts through grants of a limited form of immunity. Other industries like the tobacco industry were not so protected and the courts were used to resolve the scores of claims brought against its members by various states and municipalities.
In the case of the current opioid crisis, dozens of cities, states, municipalities and third-party payors are seeking to hold the pharmaceutical companies who manufacture FDA-approved prescription opioid medications and the companies that distribute them responsible for the consequences of opioid abuse, which in large part involves the use of illegal street drugs, such as heroin and fentanyl. Plaintiffs claim defendants created a public nuisance and they seek a wide spectrum of injunctive relief and damages, including costs for law enforcement, addiction treatment, and hospital care. See, e.g., City of Cleveland v. AmerisourceBergen Drug Corporation, et al., No. 1:18-op-45132 (N.D. Ohio Mar. 6, 2018). The claims in these lawsuits could potentially make these and other FDA-approved medications unavailable to patients suffering from pain. This article examines how the courts and lawmakers have treated manufacturers facing potentially catastrophic liabilities, often resulting from the lawful use of their products.
Gun Manufacturers
In the case of the gun industry, after several lawsuits sought to hold its members liable for wrongful death and public nuisance, the industry lobbied Congress for protection, claiming that such suits could bankrupt it, thus imperiling the nation’s ability to manufacture weapons for the military. Those efforts were successful: Congress passed and President George W. Bush signed the Protection of Lawful Commerce in Arms Act (“PLCAA”) in 2005 and codified at 15 U.S.C. §§ 7901 et. seq., which provides immunity to firearm and ammunition manufacturers and sellers from civil or administrative claims “resulting from the criminal or unlawful misuse” of firearms or ammunition. There are six limited exceptions to this immunity, including exceptions for negligent entrustment claims and actions where a manufacturer or seller knowingly violates a state or federal statute applicable to the sale or marketing of firearms or ammunition (the “predicate exception”).
The PLCAA has survived multiple constitutional challenges, e.g., Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009), City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008), and has been relied on by gun manufacturers to obtain dismissals of common law tort actions, e.g., Delana v. CED Sales, Inc., 486 S.W.3d 316, 321 (Mo. 2016), reh’g denied (May 24, 2016), general negligence claims, e.g., Jefferies v. District of
Columbia, 916 F. Supp. 2d 42 (D.D.C. 2013), public nuisance claims, e.g., Ileto, 565 F.3d 1126, and design defect claims based on a failure to install safety features on firearms, e.g., Adames v. Sheahan, 233 Ill. 2d 276 (2009). Several of these now dismissed claims were brought by family members of individuals killed in public shootings, including victims of the D.C. Sniper and the Aurora, Colorado movie theater shooting.
Currently pending in a Connecticut appeals court is a case of nationwide interest, in which the family members of first graders killed in the mass shooting at Sandy Hook Elementary School filed an action seeking an end run around the PLCAA. These families seek damages and injunctive relief against several gun manufacturers and distributors, including Bushmaster Firearms International and Remington Arms Co., LLC through a 33 count amended complaint, most of which sounds in wrongful death. The plaintiffs attempted to fall within the PLCAA’s negligent entrustment exception by arguing, inter alia, that the defendants knew or had reason to know that their respective entrustees were selling military caliber AR–15s...
