A history of dangerous devices

The American Association for Justice (AAJ) has just released a new report detailing how women have been disproportionately harmed by dangerous and unsafe drugs and medical devices: “FROM ACCUTANE TO ZONITE: A HISTORY OF DANGEROUS DRUGS & DEVICES MARKETED TO WOMEN,”

It is a long, fascinating, and shocking story. Did you know, for example, that it wasn’t until 1993 that legislation was passed requiring that women be included in biomedical research studies? And this was true even though “women take more medications than men, respond differently to them, and are more likely to suffer adverse drug events.”

The list of horrors is long: Thalidomide, the Dalkon Shield, DES, Vaginal mesh, and on and on. Again and again women in particular have been victimized by the pharmaceutical and medical products industries.

The report’s conclusion rings out, and should be shared widely:

Our current laws provide little incentive for the manufacturers of many of these products to keep them out of medicine cabinets and out of women’s bodies. In almost every case profiled here, the reports of death and serious injury have not forced manufacturers to take their dangerous products off the market; the civil justice system has. It is critical to the health of all Americans – not just women – that the ability to hold pharmaceutical and medical device manufacturers accountable when their products cause harm be upheld.

The article may be downloaded from the AAJ site, at https://www.justice.org/news/new-aaj-report-examines-history-women’s-exposure-dangerous-drugs-and-devices.

It is well worth reading.


Congressional Meddling in Civil Justice is Misguided and Dangerous

Nora Freeman Engstrom is a Professor of Law and the Associate Dean for Curriculum at Stanford Law School, where she writes and teaches about civil procedure, tort law, and legal ethics.

This article initially appeared in the Stanford Law School Legal Aggregate.

All eyes are on health care. We’re watching Congress take a hammer to the Affordable Care Act and threaten to wreak havoc on a $3 trillion-a-year industry, on which all of us rely. Concern about this congressional action is roiling op-ed pages, spilling out into town hall meetings, and even resulting in pro-Obamacare TV spots, airing across the United States.

Yet, just out of view, Congress is hard at work dismantling another system—a system that is arguably just as vital to our economy and just as critical to our collective well being. It’s the civil justice system. And the threats it currently faces are serious.

At this moment, numerous bills that alter the civil justice system are speeding through the House of Representatives. Each bill would, in its own way, upend time-honored procedures for where cases are brought, how they are litigated, and whether plaintiffs get a fair shot or, instead, face a stacked deck. That, in turn, will determine whether the laws on the books are adequately enforced or, instead, whether corporations, governmental actors, and others can violate our laws—whether involving the environment, civil rights, product safety, consumer protections, or just about anything else—with impunity.

Like health care debates, the particulars of civil justice reform can get complicated. But, I’ll nevertheless explain one of the many bills now under consideration, to give you a sense of what’s at stake.

A measure that seems particularly likely to become law is called the Lawsuit Abuse Reduction Act, or LARA for short. This measure, which passed the House on Friday over the ABA’s strong objection, targets Federal Rule of Civil Procedure 11.

As lawyers well know, Rule 11 governs our court system and authorizes federal judges to impose sanctions on those who make “frivolous” filings. Essentially, the Rule gives judges a cudgel; using the Rule, judges can mete out appropriate penalties if they feel lawyers or litigants are behaving badly.

So, what does LARA do? At its core, LARA beefs up Rule 11 and forces judges to mete out sanctions in particular instances (whereas now, the provision of sanctions rests within judges’ sound discretion). In so doing, LARA ties judges’ hands and returns us to a version of Rule 11 that was in place from 1983 to 1993.

Because LARA turns back the clock, to really understand the bill, we have got to go back in time.

Back in 1983, the Rules Committee—the government body officially charged with revising the Federal Rules of Civil Procedure—amended Rule 11 and toughened it in various ways. By upping penalties and expanding when penalties could be imposed, the Rules Committee sought to cut down on abusive litigation.

Yet, after this change went into effect, it quickly became apparent that the effort was backfiring. The amended Rule 11 wasn’t actually improving the civil justice system and, in fact, was making matters worse—so much worse that one scholar has called the 1983 amendments “one of the most ill-advised procedural experiments ever tried.” Of various problems, four stand out.

First, though the 1983 amendments were supposed to cut down on needless filings, in fact, they generated mountains of wasteful satellite litigation. In less than ten years the Rule generated nearly 7000 reported sanctions decisions.

Second, though the 1983 amendments sought to curb only “frivolous” litigation, there’s evidence that they actually chilled even meritorious suits and dampened counsels’ creativity. Relevant here, a survey of over 3000 federal litigators found that over one in five plaintiffs’ lawyers reported that fear of Rule 11 liability caused them to withhold asserting a particular claim or defense that they thought had merit.

Third, reformers didn’t predict that the 1983 amendments would affect relations between counsel. But, in fact, it is widely believed that they did so—and not for the better. In surveys, judges and counsel complained that the amended Rule damaged relationships between lawyers and generally, as Judge Jack Weinstein put it, “infuse[d] our court proceedings with a spirit of meanness and intolerance.”

Fourth and finally, back when Rule 11 was initially amended, there was a sense that the reform would be symmetric. Reformers did not predict that one side of the “v” would be affected any more or any differently than the other side of the “v.” But experience proved otherwise. In fact, studies showed that plaintiffs were more often the target of sanctions motions than their defense-side counterparts, and judges imposed sanctions on plaintiffs at unusually high rates.

Things were so bad that, in 1993, the Rules Committee re-revised Rule 11, to soften many of its harsh edges.

Thus, what LARA does is essentially exhume the 1983 version of Rule 11—an idea that was long ago tried, exhaustively studied, and that nearly all agree, failed spectacularly. Worse, it does so despite clear evidence that federal judges—the experts who oversee our civil justice system on a day-to-day basis—are quite satisfied with how things currently work. Specifically, in 2005, the Federal Judicial Center surveyed federal judges and found that the vast majority of them opposed returning to the 1983 version of the Rule. Furthermore, a full 85 percent of federal judges reported that groundless litigation—the very problem that LARA purports to address—was, in their experience, a small problem, a very small problem, or no problem at all.

In sum, when it comes to the civil justice system, as in the healthcare system, big changes are afoot. In both contexts, in their zeal to act, politicians are meddling in critically important, extremely delicate, and immensely complicated areas. In so doing, they are misdiagnosing certain problems. They are prescribing bizarre and sometimes discredited cures. And, they are risking enormous, unnecessary harm.


Recalling Tom Lambert

Joseph A. Page*

One would be hard-pressed to find a more apt exemplification for the term “a hard act to follow” than in the replacement of Roscoe Pound by Thomas F. Lambert, Jr. as Editor-in-Chief of the NACCA Law Journal in 1955. Pound was a giant who stood astride the landscape of global jurisprudence, the recipient of some 200 honorary degrees in this country and abroad, for two decades the dean of the Harvard Law School, and in his post-retirement years an adornment at the top of the masthead of a legal journal published by NACCA, a bar association of lawyers who brought tort claims on behalf of accident victims. Lambert was the young torts professor at the Boston University Law School NACCA tapped to be Pound’s successor.
The choice of Lambert turned out to be providential. In the late 1950s and the 1960s, tort law would undergo dramatic changes, as courts across the country recognized new common-law duties, cut back on rules that they found imposed undue restrictions on liability, and gave substance to the principle that monetary damages in tort cases should provide adequate compensation for accident victims. And Thomas F. Lambert, Jr., would play a key role in educating and galvanizing the lawyers who brought and won the cases that produced these results.
Although Lambert was not a nationally known figure when he replaced Roscoe Pound, his background contained subtle indications that he came to the job with a unique skill set that prepared him for the particular challenges he would face. He was a star debater at the University of California at Los Angeles, where he would also perform before large crowds as a football cheer leader for the UCLA Bruins. He was the college’s first Rhodes scholar, which enabled him to spend three years at Oxford, where he earned a degree in law and enjoyed travel opportunities that put him in contact with Europe on the brink of World War II. After doing graduate work at Yale, he entered academia in 1940 at the Stetson University Law School in Florida, and soon became its dean. This made him, at the age of 26, the youngest professor ever to lead an American law faculty.
Enlisting in the Navy as an ensign, he joined Justice Robert H. Jackson’s staff on the Nuremburg international tribunal that was bringing Nazi war criminals to justice after the cessation of hostilities, and made the oral presentation of the case against Martin Bormann, the head of the Nazi party. Upon his return to the United States, he taught part-time for two semesters at the New York University Law School, and then secured a tenure-track position at the Boston University Law School, where his professorial portfolio included torts, conflict of laws and legal history.
Trading his academic robes for the editorship of the semi-annual NACCA Law Journal, Lambert assumed responsibility for writing and editing comments on recent developments in the Association’s delineation of the field of personal-injury law, which covered accidents in the workplace, at sea, in the air and in the operation of railroads, as well as in all other situations that might give rise to a tort claim. He also contributed to each issue an essay that often sought to place in a broader perspective the case law discussed in each volume.
To produce two weighty journals a year (and a recently created monthly newsletter), even with the aid of a small editorial staff, was a daunting task. Yet the leaders of NACCA also realized that to keep him desk bound would have wasted his prodigious talent as a public speaker. So from the very beginning the Association encouraged him to go out on the hustings and address regional, state and local meetings of trial lawyers who represented accident victims, and on occasion gatherings of judges. Before long he was in great demand as a platform performer. In his decades as Editor-in-Chief, he managed to lecture in all 50 states, as well as Puerto Rico.
The impact of this outreach by NACCA cannot be understated. This was a period of explosive growth in the history of tort law, and Lambert was instrumental in both spreading the word to appellate litigators across the country and providing them with precedential support and argumentation that would keep the pro-plaintiff trend moving forward. His highly successful transition, from an academic who taught torts at one law school to a law professor with a national classroom, helped create a trained group of attorneys who would eventually become a force on the national political scene.
If all Lambert did was to transmit information, analytical methodology and techniques of persuasion to legal practitioners seeking to expand the scope of tort liability, he would have been deemed a brilliant success. But there was much more to him. In his public speaking, he adopted a unique style that served to entertain, enlighten and energize his audiences. His talks were flowery, persuasive, and leavened with gentle wit. He delivered them without the aid of notes, after hours of meticulous preparation.
They were most memorable in their coinage of phrases and use of epigrams. Thus, plain-speaking on behalf of accident victims became the use of “shirt-sleeve English” by trial lawyers (or “princes of the trial bar,” as he was wont to call them); the adjuster was an employee of the “Holy Grail Insurance Company” who could “enter a revolving door behind you and exit it ahead of you;” a professor “smelled of the lamp” and “would look like a foreigner in any country;” an editor is one who “approaches all questions with an open mouth;” the purpose of personal-injury law is to “comfort the afflicted and afflict the comfortable;” and the underlying principle of torts is that “it is better to build a fence at the top of the cliff than to keep an ambulance parked at the bottom.”
Since this was a time when the expansion of tort liability would require that many state courts overrule precedent, Lambert often applied his rhetorical magic to the tension between continuity and change, as embodied in the doctrine of stare decisis, and cabined by his predecessor Roscoe Pound’s Olympian pronouncement that “The law must be stable yet it cannot stand still.” Accepting as a given that “We ring the bells of the future with the rope of the past” and that “There is a time for cement and a time for ferment,” he placed tort law squarely in the latter category, and called upon NACCA’s “stalwarts” to convince courts to change outmoded tort doctrines (such as “the barnacled and baneful contributory negligence rule”) that kept tort law from fulfilling its lofty goals (“the urge of the acorn to become an oak”), or that perpetuated error (“In 1491 the world was flat, Columbus, J., dissenting”).
His legion of admirers dubbed him the “Poet Laureate of Tort Law,” which might not have done full justice to the oratorical virtuosity that made him an exceptional “Great Communicator.” But because he lived in a pre-YouTube era, when audio and audio-visual recordings of the kind of talks he customarily delivered were seldom made, his reputation has faded, as those among us who personally experienced his magic grow fewer. One can but hope that those who believe in the cause he espoused (a common law of torts that is always improving and in the process of becoming) will make every effort to rekindle his spirit and adapt it to the needs of the twenty-first century, with tort law under siege and new technologies presenting new risks requiring some measure of public control.


Hidden Dangers in Cars


Automobiles have been closely tied to the law of torts for a century. There have been many automobile-related lawsuits, ranging from cases involving the operation of cars (who ran the stop sign?) to defects and dangers in the design and manufacture of the automobiles (and other motor vehicles) themselves. And because tort law is quality control, cars and trucks are safer as a result.

Still, it is worth noting that motor vehicles still pose significant threats to the health and safety of passengers, sometimes in unexpected ways. Two recent articles which highlight this are found in the New York Times.

On October 26, 2016, in an article titled “Used Cars Slip Past Recall Safeguards, Putting drivers in Danger,” Rachel Adams and Hiroku Tabuchi reported on the dangers of cars for which recall notices have been issued, but repairs have not been made. As they noted, “[There are] a group of drivers especially vulnerable to dangerous vehicles: second, third or even fourth owners, who purchased their vehicles in transactions far removed from the protections offered to buyers of new cars.”

This is because “there is no explicit federal requirement that sellers of used cars fix problems related to safety recalls, or even disclose the recalls, the way new-car dealers must.”

And this is a big problem. last year, roughly 38 million used cars were sold across the country, which is more than twice as many as cars that were sold new.

This is an article worth reading. As the authors note, there is an online government database, which anyone can use, to see if there are recalls associated with a given car. The vehicle identification number is necessary to use this. The link is here: https://vinrcl.safercar.gov/vin/

The New York Times also reports on another hidden danger of cars, this time with overseas cars. The article is “Thinking of Renting a Car in Yucatan? Think Twice,” by Tanya Mohn, which appeared in the New York Times on October 31, 2016.

This article points out that

When Americans rent a car in the United States, they have come to expect a certain measure of safety. But in some parts of the world, it can be a different story. The car driven at home may have many of the latest safety features, but the same make of car rented abroad may not have even the most basic ones. (Emphasis added).

This effects millions of cars sold around the world. As the author notes, “improvements introduced decades ago for cars sold in Europe and the United States are not found in many new models sold in middle-income countries in Africa, Asia and Latin America.”

Several auto safety groups organized a crash test between a 2016 Nissan Versa, sold in the United States, and a Nissan Tsuru, a model “popular for rentals and taxis in Mexico.” The results were devastating. The Tsuru had no airbags, and in a crash test, caused injuries probably sufficient to kill a passenger on impact. The crash test dummy in the Versa, by contrast, would have only sustained minor knee injuries. “It’s the worst performance I ‘ve ever seen, said David Ward, who leads one of the safety groups involved in the [crash] test and referred to the Tsuru as a ‘Deathtrap.’”

Although Nissan has indicated that it will stop production of the Tsuru, that won’t be until next May. The article states:

The Latin American chapter of Mr. Ward’s group noted that Tsurus had been involved in more than 4,000 deaths on Mexico’s roads between 2007 and 2012. Despite the decision to end production, as least 15,000 of the ‘potentially life-threatening model’ might be sold before Nissan Mexico stops making it.

The article concluded by noting that “when American cruise ship travelers arrive in a foreign country, there is often a big line in front of Hertz or Avis stands, so they go to the counter of a local rental car company with no line. It’s usually a mistake.”

These two articles serve as cautionary warnings to consumers. Be careful out there.


Importance of Juries, pt 1

The right of trial by jury is one of the jewels of the American system of government. For hundreds of years the right of trial by jury has been seen as a check, not only on the power of government; but also on the influence of the wealthy and powerful, or in today’s parlance, the 1%.


In Defense of Lawsuits

For years the American Chamber of Commerce has waged a war against the civil justice system. It is, after all, no big secret that the American Chamber of Commerce hates trial lawyers, and tort law; hates, in fact, the very idea of a system which hold wrongdoers accountable for causing injury, harm, and death.


’98 Tobacco Settlement

November 1998 marked a pivotal moment in the history of cigarettes in the United States. Forty-six states and the four largest tobacco companies reached a landmark settlement that brought sweeping changes to cigarette manufacturers’ practices—and to rates of smoking. Since the settlement, cigarette smoking rates in the United States have been cut nearly in half.


Tyson Foods Update

At the beginning of the workday, some workers do not simply arrive and start working. Workers at the Tyson Foods, Inc., plant in Storm Lake, Iowa, first must put on protective and sanitation gear that is necessary for the tasks they are performing that day. The time they spent donning and doffing that gear is at the center of a case that the Supreme Court decided on March 22.


Shining a Light

Three of the most important purposes of tort law are:

  • To compensate those who have been wrongly injured;
  • To disclose the acts of wrongdoing that caused or cause harm;
  • To deter wrongdoing in the future.

Many of the exhibits at the American Museum of Tort Law reveal how powerful the second factor – disclosure – is, in exposing wrongdoers, and holding them accountable. This means more than just compensating the injured victim or victims (although that is important, too.) It means that time after time, lawsuits filed against corporations have led to the disclosure of knowing, intentional conduct by the corporate defendants. In other words, people have been injured or killed not by mistake, but as a result of conscious, deliberate decisions.

The list is long – the Ford Pinto, the Asbestos cases, the tobacco litigation; the McDonald’s coffee. In fact, the list is long enough so that you’d think that corporations would learn the lesson: The tort system works very well to expose deliberate acts of wrongdoing; and wrongdoers will be held accountable for hurting or killing people.

And yet despite this, corporations continue this pattern of wrongdoing, followed by concealing, and denying, hoping that the truth will not come out.

Here are two recent examples:

On January 10, 2016, The New York Times Magazine published “Poisoned Ground: Rob Bilott v. DuPont”, which documents one lawyer’s dogged fight – over 16 years – to prove that DuPont had unsafely disposed of a cancer-causing chemical (called PFOA or C8), and then had tried to conceal its knowledge of the terrible health risks that the chemical caused.) It took 16 years, and incredible persistence by the lawyer, Rob Bilott, and his law firm, Taft Stettinius & Hollister, but the truth came out, and it cost DuPont millions of dollars. Why? Why would Dupont put the health, safety and welfare of thousands of people at risk? And then why would it fight, and deny and delay for so long? The cost – both in human life, and to DuPont – was enormous. And worse, this corporate behavior was wrong. Indefensible.

Recently, too, Arthur Bryant and the outstanding civil action group Public Justice took on Remington Arms, and learned that for decades, Remington has known of a defective and unsafe trigger mechanism. There have been at least 130 lawsuits claiming the people had been hurt or killed when the gun fired even though no-one pulled the trigger. Remington publically denied that there was a problem with trigger mechanism, and quietly settled cases brought against it, with the requirement that the records be sealed, to keep others from finding out.

But Public Justice, working with plaintiff’s lawyers who brought a class action, managed to unseal thousands of documents that show that “Remington knew that the rifle was defective, lied about it and covered up the defect.”

As Arthur Bryant states:

We now know that Remington knew about the defect for over 50 years, did not fix it, and denied its existence. When lawsuit after lawsuit after lawsuit was brought, Remington hid the truth. When a lawsuit uncovered some of the truth, Remington settled the case secretly and swore the plaintiffs to secrecy. Incredibly, Remington is still claiming that these rifles are safe – but its own documents show that’s not true and that Remington knows it.

The story, as reported online at Corporate Crime Reporter, is as interesting as it is shocking.

For example, in 2010, CNBC did a story on the dangers associated with the Remington Rifle. In response, Remington spent over two million dollars to produce and broadcast a rebuttal. But, as Bryant stated in the interview, the documents show that

Remington knew that most of the things it was saying in its rebuttal to CNBC weren’t true.For example, Remington claimed that it had never been able to make these guns fire without pulling the trigger and that none of its experts had ever been able to make these guns fire without pulling the trigger. The documents show that isn’t true — and that both Remington and its experts were able to get these guns to fire without a trigger pull.

In short, as Bryant puts it, the documents he and his team obtained

show that, since shortly after this gun was marketed in the 1940s, Remington knew it was defectively designed and could fire without anyone pulling the trigger. As time went on, it knew the gun was firing without a trigger pull and killing and injuring people. But Remington denied there was a problem, fought the lawsuits, looked into possible fixes and refused to implement them. It just kept selling the product and hiding the truth.

Does that seem like responsible corporate behavior? To spend millions of dollars to broadcast something that is entirely misleading? To settle cases, but insist on secrecy, so that others do not learn of the dangerous problem with the product? To fight, rather than to fix?

Fortunately, our system of law – tort law, and trial by jury – are there, to keep watch on the wrongdoers, and so disclose their wrongful acts.

“Arthur Bryant, Rich Barber And the Campaign to Bring Remington to Justice,” Corporate Crime Reporter, January 19, 2016

Flint Water Crisis

Flint, Mich., is under national scrutiny because of its contaminated drinking water. Various mismanagement of the city’s drinking water supply has allowed dangerous levels of lead into people’s homes, workplaces, and schools.