But all the while, we’ve had in the back of our minds the analogous situation in state court. It would be hard for us not to, being so close to the mass tort mills in Philadelphia, New Jersey, and New York – jam-packed with litigation tourists from all over the country. In our collective gut, we sense that state court judges – no less than federal judges – should refrain from predicting the laws of other states in novel ways that expand liability beyond the precedents set by the courts of those other states. The same principles of comity and respect for the interest (and primacy) of other states in their own laws apply.
But we’d never blogged about it, because we never had a hook to hang our hats on.
That changed this week. Not to step on McConnell, who will be looking at Gianvito v. Premo Pharmaceutical Laboratories Inc., ___ N.Y.S.2d ___, 2012 WL 914997 (N.Y. App. Div. March 20, 2012), more comprehensively next Monday, we were quite pleased to come across this gem from New York’s first appellate division:
[T]o the extent New Jersey law is unsettled on the issue, we decline to expand the law therein to allow plaintiffs to allege a market share theory.Id. at *1. That’s the same general principle of Erie federalism, extended to the state vs. state context as some form of comity.
Not only that, but Gianvito actually cited something for the proposition. So we took a look at the cited case, In re New York County DES Actions (Kush), 655 N.Y.S.2d 520 (N.Y. App. Div. 1997), and sure enough Kush stated, “it would be improper and presumptuous for the courts of this State to expand the theories of products liability recognized by foreign states.” Id. at 173 (refusing to predict expansion of Pennsylvania law).
Kush, in turn, quoted from yet another DES/market share liability case, In re New York County DES Litigation (Godfrey), 636 N.Y.S.2d 338 (N.Y. App. Div. 1996), which examined interstate comity concerns in a bit more length:
These three actions were commenced by foreign residents whose exposures to [the drug] occurred in foreign states. . . . The substantive laws of the foreign states at issue here do not recognize non-identification theories of liability in products liability cases such as these. . . . Under the circumstances, it would be improper and presumptuous for the courts of this State to expand the theories of products liability recognized by foreign states.Id. at 428 (Georgia, Iowa, and Missouri law) (citations omitted). That’s as far back as we can go on that thread, because Godfrey's citation for the “presumptuous” language is a federal case, applying our familiar Erie principle – so the two definitely are related.
But in Godfrey, at last, there was also a key number (unfortunately, for present purposes, under product liability) for the proposition. We looked, and found the “presumptuous” language cited in another New York DES case: Armata v. Abbott Laboratories, 747 N.Y.S.2d 863, 866 (N.Y. App. Div. 2002) (Massachusetts law). Good language, to be sure, but so far it’s all New York and all market share liability.
This is a hard principle to research, as it could (and probably does) arise in many areas of the law, and it could be phrased in many ways. Our quick attempt at locating law elsewhere did not uncover much – although we did find a relatively recent unpublished New Jersey court decision advocating “cautionary principles . . . in approaching novel legal issues arising under another state’s law” in the corporate context. Employer Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Caspersen, 2006 WL 435289, at *11 (N.J. Super. A.D. Feb. 24, 2006) (“If [another state] is going to recognize the . . . obligation for [defendants] advocated by plaintiff, that recognition should come from a [that state’s] tribunal rather than from a foreign state’s court”). The New Jersey court “affirm[ed], as we likewise conclude that plaintiff's legal theory has yet to be recognized in the courts of [the relevant state], and that principles of interstate comity warrant our forbearance in so expansively interpreting the corporations law of a sister state.” Id. at *1. It's hard to argue that another state’s tort law should be treated any less respectfully. We offer this case because New Jersey is another state where the issue of novel, expansive liability under other state’s laws could be expected to arise with some frequency.
If anybody else out there is familiar with similar principles adopted in his/her state, let us know and we’ll give you credit. Also, if there are any law professors out there looking for topics for law review articles, the issue of interstate comity and one state court’s prediction of novel forms of tort liability under a different state’s law appears not to have been addressed in any prior law review article that we could find.