Tuesday, Oct 23, 2007 --- “Notice pleading” allows plaintiffs to file broad andvague boilerplate complaints, and judges then permit limitless discovery, says Foley Hoag’s David Geiger in our series of chats with high-profileproduct liability lawyers.
Q. What’s the most challenging product liability lawsuit you’ve worked on, and why?
A. The Commonwealth of Massachusetts’ lawsuit against the tobaccoindustry to recover several billion dollars in Medicaid costs allegedly causedby smoking-related illness. The case was an early example of the unholyalliance among politicians, the plaintiff’s bar and the news media. Not onlywere the resources of the state against us but four law firms, well-capitalizedwith the proceeds of prior mass tort ventures such as asbestos litigation,joined in, and there was regular adverse publicity. The suit was specificallyauthorized by a statute, of unclear meaning, which was conveniently passedwith little or no public attention.
Legally and factually, the issues were extremely complex. The suitaggregated the claims of tens of thousands of individuals, yet the stateclaimed it did not need to prove each of those claims and could insteadproceed by general statistical “proof” that would strip defendants oflongstanding product liability defenses. As another early example of a trendthat continues today, the state sought triple damages and attorneys’ feesunder an unfair and deceptive practices statute. Discovery involved millionsof paper and electronic documents.
After the defense made significant headway, including eliminating theapproximately $7 billion multiple damages claim and interposing severalwell-founded summary judgment motions, the case settled as part of thenational settlement of such cases. Unfortunately, the resulting proceeds havehelped financed the plaintiff’s bar’s current legal assaults.
Two other very complicated cases, for entirely different reasons, werematters we defended involving alleged genetic misdiagnoses, one frommaterial taken from an in vitro four-cell pre-embryo prior to its implantation ina woman and another from an early pregnancy chorionic villus sampling. Ineach case, the parents alleged they had given birth to a child with the verydisease they were seeking to avoid. The complexity of the medical andscientific issues in these cases matched or exceeded that of any others I canthink of.
Q. What’s the most ridiculous product liability lawsuit you’ve defended a client against?
A. A police officer, of all people, claimed he was doing a handgun reloadingdrill on the firing range. One cartridge manufactured by our client“spontaneously” detonated in midair after being ejected from his revolver, hesustained a scratch on his thigh through his blue jeans, which was treatedwith mercurochrome and as a result he suffered ... post-traumatic stressdisorder! Even more ridiculous, our state’s public employee retirement boardhad qualified him for permanent disability.
Q. Which aspects of product liability law do you think are in need of reform, and why?
A. The doctrine of strict liability should be abolished. It was invented out ofwhole cloth by academics and California courts in the 1960s. By creatingliability for conduct that is not “wrong,” it is completely at odds with the law’snormal purpose of encouraging “proper” behavior. It creates litigation whenthere would otherwise be none. And its core justification is purportedly thatthe costs of even innocently caused injuries should be borne by productsellers rather than the injured person because the former can more easilyspread those costs. Yet most individuals have insurance for costs such asmedical treatment. “Spreading” the costs really means that all of us have tobear them through higher prices and, even if sound, the theory is aquintessential policy judgment that should be made by legislatures, notcourts.
Also, the whole notion of “notice pleading,” while not specific to productliability cases, has extremely pernicious effects. The doctrine allows plaintiffsto file broad and vague boilerplate complaints, and judges then permitlimitless discovery. The result is to impose huge costs — totally out ofproportion to the real claims and defenses — on defendants, which in turnforces the vast majority to settle. And you wonder, why the “vanishing jurytrial”?
Q. If you were in charge of food and drug safety in the United States, what changes would you make?
A. The biggest change should be one of communication rather than law: Theauthorities should make clear that maximizing public health does not meanavoiding all risk. For example, while withdrawing from the market a drug thatmay pose a small risk of a serious side effect may in some sense promote“safety,” the cost result is that illness for which that drug is useful may gountreated, or be treated less effectively, causing pain, disability and evendeath for some patients. The only proper approach can be to make decisionsbased on the best available scientific evidence and to constantly reassessthese decisions over time. This, rather than pandering or sloganeering, willbest protect the well-being of the American people.
Q. Where do you see the next wave of product liability cases coming from?
A. I think we are already there. The “next wave” is the attempt of plaintiff’slawyers, frustrated by jurisdictions that have developed sensible productliability doctrines requiring reliable scientific evidence of wrongful conductand injury to circumvent these doctrines through other theories such asnuisance law or unfair and deceptive practice statutes.
In many cases, plaintiff’s counsel shamelessly sues for plaintiffs whoadmittedly have suffered no injury. And then they try to aggregate the claimsin a class action and bring them in a biased forum — often one with virtuallyno contact with the claims — so as to have maximum clout to extort largesettlements. And those settlements fund the next wave and the next. Untilhonest and conscientious judges apply sensible legal doctrines in alljurisdictions, there will always be a next wave.
Q. What advice would you give to a young lawyer who’s interested in getting into product liability law?
A. Do it! If you’ve got the willingness to master complicated areas of scienceand medicine, and sometimes also complicated statutory and regulatoryregimes, as well as the fortitude to advocate for principled application ofsensible legal principles through trial and appeal, we need you.
Q. I’m a general counsel with a Fortune 500 company facing a major product liability lawsuit. Why should I hire your firm?
A. We have the resources of a very large firm without the same overhead.We marshal tremendous intellectual capital to solve the problems posed byyour lawsuit — bright lawyers from the best law schools (about a third haveserved judicial clerkships), highly capable M.D.s, Ph.D.s, engineers, nursesand other technical personnel plus access to accomplished outside experts.We have a vast depth of industry knowledge, especially in the life sciences.Responsiveness to clients is at the core of our culture. Plus our productliability lawyers have a national reputation and constantly advocate for afairer justice system.
David Geiger is the head of the product liability and complex tort practice group at Foley Hoag LLP.