We’ve posted quite a bit on the substantive due process aspects of punitive damages. Other than that, we frankly hadn’t thought about substantive due process being applicable to other aspects of product liability litigation.
Well, it’s time to start thinking.
A decision has just come down that accepts the argument that the expansion of state common-law tort liability can be so overreaching and so contrary to settled legal expectations as to violate a defendant’s right to due process. See Gibson v. American Cyanamid, Inc., slip op. (E.D. Wisc. June 15, 2010).
We’re particularly pleased with Gibson because it dispatched one of our longest-standing bête noirs – market share liability. When Bexis first encountered the market share liability concept way back in law school, he was so offended by it that he put on his “to do” list making sure that Pennsylvania never adopted such a cockamamie theory. Mission pretty much accomplished: see Skipworth v. Lead Industries Ass’n, 690 A.2d 169 (Pa. 1997) (represented amicus PLAC); City of Philadelphia v. Lead Industries Ass’n, 994 F.2d 112 (3d Cir. 1993) (same).
Then Bexis took that show on the road, with more mixed results. He won a diethylstibestrol (DES) case in Ohio (Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio 1998)) and a gun case in New York (Hamilton v. Beretta USA Corp., 750 N.E.2d 1055 (N.Y. 2001). But when Bexis took his act to Wisconsin, he got his head handed to him in Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005). Bexis’ ears are still ringing from that one. He didn’t know it at the time, but Thomas was part of a more generalized running amok of a pro-plaintiff majority on the Wisconsin Supreme Court in 2005-06 – for more about that go here.
Which brings us back to Gibson – because the wholesale expansion of market share liability to non-fungible products in Thomas is what was just declared unconstitutional in Gibson. Both Thomas and Gibson arise from lead paint pigment litigation. In that litigation plaintiffs have sought to leverage their self-inflicted (because they choose to sue only raw lead-based pigment manufacturers rather than identifiable paint stores or paint manufacturers) inability to identify product manufacturers as an excuse for doing away with product identification as an essential element of causation. Thomas was their one big win.
An aside (another one) – you may be wondering what does this have to do with drugs and medical devices? It does. Market share liability was first imposed in prescription drug litigation involving DES, and plaintiffs have tried to extend it to other drug and vaccine cases ever since (we expect it will rear its ugly head in pain pump cases when plaintiffs have to put up or shut up). So, yeah, it’s relevant.
Market share liability was created to deal with a generic drug problem before anybody had ever heard the term “generic drug”. As originally applied, it was limited to chemically identical products. That changed in Thomas, which imposed a version of market share liability on a motley selection of lead-based chemicals, none of which was used in residential house paint after 1974 – at least. Here’s how the Gibson court described what happened in Thomas:
Thomas was a dramatic and novel departure from established legal principles. The Wisconsin Supreme Court . . . relied upon Article I, Section 9 of the Wisconsin Constitution, which states, in pertinent part, that every person is “entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character.” By reading a due process standard into this section, the court found that the injured Thomas should not be foreclosed from recovery simply because he could not prove causation. In essence and effect, when the court’s view of due process requires it, every person is “entitled to a certain remedy for all injuries.” When an adequate remedy does not exist to “provide due process, the courts, under the Wisconsin Constitution, can fashion an adequate remedy.”
Slip op. at 2.
Ordinarily, unless there’s legislative tort reform (not likely in Wisconsin), that’s been the end of it. No matter what how idiotic the common-law tort theory – strict liability, market share liability, malfunction theory, medical monitoring, public nuisance – once a state’s high court adopts it, well they never go back, do they? Pro-plaintiff courts play by one rule, “what’s mine is mine; what’s yours is negotiable.”
Well, wonder of wonders! In Gibson the court discovered that defendants have due process rights, too – and the defendants’ rights under the federal constitution trump (dare we whisper, “preempt”) the weird universal right to recover that Thomas extracted from the poor, mistreated Wisconsin constitution.
In Gibson the court concluded that defendants are protected by Due Process from excessive retroactive tinkering with the law under the Supreme Court’s decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Slip op. at 23. Landgraf was one of these decisions in which the Court splintered every which way, and one has to count votes carefully to figure out what it stands for. Landgraf involved a...
