All We Want are the Facts, Ma’am

            “The story you are about to hear is true; the names have been changed to protect the innocent.”  Well, not exactly, we don’t change the names but we try to give you the facts.  Just like Sgt. Joe Friday, we seek facts (note that our title is the phrase actually used by Jack Webb in the series Dragnet, whereas the more well known “just the facts, ma’am” was popularized by a spoof performed on Ed Sullivan’s Talk of the Town).  As defense lawyers, we immerse ourselves in facts.  We learn all the details of the plaintiff’s medical history, employment history, education.  We learn all the details of the alleged injury or disease – we know the risk factors, other potential causes, treatments and projections.  We particularly like it when courts are as interested in the facts as we are.  As were the courts in two cases decided last week; one on a motion to dismiss and the other on a motion for summary judgment.  But, both centered on design defect and so we thought we’d look at them together.

            First up is Tilden v. General Electric Company, 2012 U.S. Dist. LEXIS 40773 (E.D. Tenn. Mar. 26, 2012) which involved an allegedly defective MRI machine.  According to the complaint, while undergoing an MRI, a piece of the machine broke and fractured the plaintiff’s arm which had to be surgically repaired.  Plaintiff died approximately two months later allegedly as a result of “illness and the fracture to his forearm.”  Id. at *2-3.  All of plaintiff’s product liability claims were subsumed under the Tennessee Products Liability Act which requires that plaintiff prove that the “product was defective and unreasonably dangerous at the time the product left the control of the manufacturer.”  Id. at *8 (citation omitted).  And, of course, plaintiff bears the burden on proximate cause too.

            At the motion to dismiss phase, the court wasn’t looking to see if plaintiff had proven his case, but rather whether the plaintiff had alleged sufficient facts for the court to infer the existence of a defect and proximate cause.  Id. at *10.  Plaintiff’s facts were – the machine broke and plaintiff was injured.  Not nearly enough.  Even Sgt. Friday couldn’t build a case with that little to go on.  As the court found:  “[E]ven if a plaintiff allegedly suffered an injury from a product, it does not necessarily follow that the product was defective.”  Id. at *13.  Nor does it follow that because an injury was sustained, it was caused by the alleged defect.  Plaintiff’s allegations must trace the alleged injury to the specific defect, not just the product as a whole. 

While plaintiff alleges that the MRI machine caused [his] injury . . . and expedited his death, plaintiff has not alleged any facts indicating how the alleged defect--whether it was in the design or in the manufacturing of the MRI machine--caused [his] injuries. . . . [t]he relevant question is not whether the [the product] caused [the plaintiff] pain; the issue is whether the alleged defective design or manufacturing of the [the product] caused [the plaintiff] pain. . . . Plaintiff's complaint contains no factual allegations regarding this issue of causation.

Id. at *15-16 (citation and quotation marks omitted).  Without the facts, the court’s decision was clear – conclusory allegations and legal conclusions don’t satisfy the requirements of Twiqbal – case dismissed. 

            The second case is Sosnowski v. Wright Medical Technology, Inc., 2012 U.S. Dist. LEXIS 41303 (N.D. Ill. Mar. 27, 2012).  Being at the summary judgment stage, this case was much farther along than Tilden and therefore, the court was looking at many more facts. But, the facts stacked heavily in favor of defendant.  The product was a hip prosthesis.  Plaintiff, who then weighed 340 pounds, underwent hip replacement surgery in 2006.  At that time, plaintiff signed an informed consent form that included the risk of device failure.  Six weeks after surgery, plaintiff reported being pain-free and for about one year in 2007-2008 he was able to work as a school custodian.  Then, in 2010, the hip prosthesis fractured due to fretting and fatigue.  At that time, plaintiff weighed 438 pounds.  Id. at *1-2. 

            So, in summary – plaintiff had his hip replaced; the surgery was a success to the point of plaintiff being able to work in a physically demanding job.  Then, four years later, plaintiff, already obese, gained another 100 pounds and the implant fractured.  Dum-de-dum-dum.  It doesn’t take a detective to figure out what happened here.

But, let’s look at the court’s analysis anyway.  It applied the risk-utility test to determine whether plaintiff had met his burden on design defect.    First, utility.  No question that hip implants are useful to the population as a whole and clearly, this one was useful to plaintiff for at least four years.  Id. at *6.  Based on the facts, utility goes to the defendant.  Second, likelihood of injury.  Here, the facts were that after 10 years on the market, the highest fracture rate reported for this device was 0.36% -- similar or lower than most reported in the medical literature.  Id. at *8-9.  Advantage defendant. 

Next, compliance with industry standards.   Defendant’s facts were that it had complied with ISO standards and that the fatigue testing it provided to the FDA as part of the 510(k) clearance process was “consistent with normal industry practices.”  Id. at *9-10.  Plaintiff pointed to data in the medical literature regarding how much weight the prostheses are subject to.  To which the court responded:

Nor does plaintiff offer evidence that the medical literature he cites represented an industry standard, an authoritative voluntary organization's design guidelines, or design criteria set by legislation or governmental regulation.

Id. at *10.  Moving on to warnings, the device contained a warning regarding the exact risk at issue:  “An overweight or obese patient can produce high loads on the prosthesis which can lead to failure of the prosthesis.”  Id. at *11.   Two more for the defendant’s column.

            The court next had to consider the availability and feasibility of an alternative design.  The prosthesis at issue was made of titanium.  Plaintiff argued that it could have been made of cobalt chromium, a stronger alloy.  Plaintiff’s expert stated that cobalt chromium “appears to be a valid substitution.”  Id. at *11-12.  Plaintiff’s expert, however, failed to address the down sides of using cobalt chromium.  Facts pointed out by defendant’s experts -- such as, increased stiffness, less biocompatibility, and allergenic/carcinogenic properties.  Id. at *12-13.  Therefore, the court concluded:

that plaintiff has not shown that a prosthesis made from cobalt chromium is a better alternative to titanium. It is not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it would also introduce into the product other dangers of equal or greater magnitude.

Id. at *13-14 (citation and quotation marks omitted). 

            Finally, the court considered the consumer’s expectations.  Here, the facts are that everyone was aware of the potential for product failure, but “[w]hile the risk of plaintiff’s type of injury was foreseeable, . . . plaintiff has not offered evidence showing that these risks outweighed the benefits.”  Id. at *15.  Putting all of the facts together, the court found:

Because plaintiff has not offered evidence that the risks of defendant's prosthesis outweighed its benefits, the court concludes that no reasonable jury could find in plaintiff's favor on his strict products liability claim based on a design defect theory.

Id. at *16.  For all the same reasons, the court also dismissed plaintiff’s negligent design claim.  And, because the defendant “warned of the precise risk that plaintiff now complains of” and that warning was not inaccurate or misleading, plaintiff’s failure to warn claim also failed.  Id. at *18-20.

            So, those are the facts.  You’ve got to plead facts to start a case and you’ve got to prove facts to get to a jury.  Without that, plaintiff’s claims are more likely to get caught in a dragnet than see the inside of a courtroom.

Is There A Constitutional Right To Punitive Damages?

We recently came across a post on a Bricker & Eckler blog, about a slightly less recent Ohio Supreme Court case, Havel v. Villa St. Joseph, 963 N.E.2d 1270 (Ohio 2012), upholding the constitutionality of Ohio’s statute imposing mandatory bifurcation in punitive damages cases.  Havel held, after considerable back and forth:

[The statute] does not violate the Ohio Constitution and is constitutional because it is a substantive law that prevails over a procedural rule.  Inherent in our conclusion is rejection of the argument that dicta contained in Sheward [an infamous anti-tort reform decision], which described the former version of [the statute] as governing a procedural matter. . . . Sheward never considered the bifurcation question we confront in this case. Thus, we are not required to follow out-of-context dicta as precedent.

Havel, 963 N.E.2d 1279 (quoting and following Arbino v. Johnson & Johnson, 880 N.E.2d 420, 443 (2007)).  That’s an excellent result, but by addressing the constitutional issue in this way the Court did not have to pass on a more fundamental question that we’ve been pondering, which is whether a plaintiff has any constitutional right punitive damages in the first place.

In that regard, the Bricker post helped us out.  In discussing Havel, it mentioned that “Ohio’s caps on punitive damages have been upheld as constitutional (in Arbino v. Johnson & Johnson).”

There’s that case again.

Arbino seemed like a pretty good place to begin seeking an answer to the basic constitutional question, so we took a look. Sure enough, Arbino turned out to be a recent example of what we’ve come to conclude is a virtually universal rule that, until a judgment in an individual case is actually entered, there is no “vested right” to pursue a claim for punitive damages.  Nor for that matter is elimination of a punitive damages remedy a “taking.”  Basically, punitive damages are a form of punishment, not compensation, to which no constitutional right attaches.  As the Ohio Supreme Court stated in Arbino:

[R]egulation of punitive damages is discretionary and that states may regulate and limit them as a matter of law without violating the right to a trial by jury. . . .  [P]unitive damages are not compensation for injury.  Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.  The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct.

880 N.E.2d at 441 (citations and quotation marks omitted).

As it turned out, Arbino is hardly alone. Here’s what some other state supreme courts have said on the issue:

Indiana:

[A] party has no prejudgment property interest in a punitive damages award. . . .  [T]here is no vested property right in an award of punitive damages. . . .  [U]nder either the federal or the [state constitution] Takings Clause, there is no property right in a claim for punitive damages.  Rather, consistent with their punitive nature, punitive damages are akin to a fine exacted by the government . . . to deter and punish wrongdoers.

Cheatham v. Pohle, 789 N.E.2d 467, 474 (Ind. 2003) (citations and quotation marks omitted).

Oregon:

[A] plaintiff has no right or entitlement to punitive damages as a remedy . . . and, as a result, the jury has complete discretion not to award punitive damages, even if a plaintiff successfully proves all elements of a claim.  Consequently, before entry of a final judgment, a plaintiff . . . always has had, at most, an expectation of such an award. . . .  A vested right must be something more than a mere expectation based upon the anticipated continuance of existing laws; it must have become a title legal or equitable to the present or future enjoyment of property.  We therefore hold that plaintiffs do not have a vested prejudgment property right in punitive damages.

Demendoza v. Huffman, 51 P.3d 1232, 1245 (Or. 2002) (citations omitted).

Kansas:

[A]ll of our cases recognized that a plaintiff has no vested right to punitive damages and that no right, cause of action, or remedy existed . . . separate and apart from an action for compensatory damages.  Exemplary damages are in no case a right of the plaintiff, but are assessed at the discretion of the jury for the purpose indicated. . . .  [N]o citizen has a right to recover punitive damages; therefore, there is no life, liberty, or property interest of a plaintiff involved where punitive damages are concerned.

Smith v. Printup, 866 P.2d 985, 997 (Kan. 1993) (citations and quotation marks omitted).

Georgia:

A plaintiff has no vested property right in the amount of punitive damages which can be awarded in any case, and the legislature may lawfully regulate the amount of punitive damages which can be awarded.

Mack Trucks, Inc. v. Conkle, 436 S.E.2d 635, 639 (Ga. 1993) (citations omitted).

Florida:

[Plaintiff] has no cognizable, protectable right to the recovery of punitive damages at all.  Unlike the right to compensatory damages, the allowance of punitive damages is based entirely upon considerations of public policy.  Accordingly, it is clear that the very existence of an inchoate claim for punitive damages is subject to the plenary authority of . . . the legislature.  In the exercise of that discretion, it may place conditions upon such a recovery or even abolish it altogether. . . .  The right to have punitive damages assessed is not property; and it is the general rule that, until a judgment is rendered, there is no vested right in a claim for punitive damages.  It cannot, then, be said that the denial of punitive damages has unconstitutionally impaired any property rights of appellant.

Gordon v. State, 608 So.2d 800, 801-02 (Fla. 1992).

Iowa:

Plaintiff also contends that the punitive damage award constitutes property entitled to constitutional protection under both the federal and [state] constitutions. . . .  [A] plaintiff has no vested right in a particular measure of damages. . . .  [P]unitive damages are remedial and that a plaintiff has no vested right to such damages prior to the entry of a judgment.  Consequently, a statutory provision limiting a punitive damage award may be applied retrospectively without violating due process or equal protection . . . .  [P]unitive damages are not allowed as a matter of right and are discretionary. . . .  [P]unitive damages are not intended to be compensatory and that a plaintiff is a fortuitous beneficiary of a punitive damage award simply because there is no one else to receive it.  Under our view of punitive damages . . ., plaintiff did not have a vested right to punitive damages prior to the entry of a judgment.

Shepherd Components v. Brice Petrides-Donahue & Associates, Inc., 473 N.W.2d 612, 619 (Iowa 1991) (citations and quotation marks omitted).

Missouri:

[P]unitive damages are remedial and a plaintiff has no vested right to such damages prior to the entry of judgment.  Punitive damages are never allowable as a matter of right and their award lies wholly within the discretion of the trier of fact. The purpose of punitive damages is to inflict punishment and to serve as an example and deterrent to similar conduct. . . .  Such damages being allowed in the interest of society, and not to recompense solely the victim, to deny them cannot be said to deny any constitutional right or to encroach upon any judicial function, or to violate any constitutional guaranty of separation of powers.

Vaughan v. Taft Broadcasting Co., 708 S.W.2d 656, 660 (Mo. 1986) (citations omitted).  See also Rhyne v. K-Mart Corp., 594 S.E.2d 1, 14 (N.C. 2004) (“plaintiffs do not have a vested prejudgment property right in punitive damages”); Evans v. State, 56 P.3d 1046, 1058 (Alaska 2002) (as to “a cap on punitive damages, limiting them before they are awarded to successful plaintiffs, no constitutional problem exists”; punitive damages may be “limited or abolished”); Meech v. Hillhaven West, Inc., 776 P.2d 488, 503 (Mont. 1989) (“no vested right to exemplary damages”); Fust v. Attorney General, 947 S.W.2d 424, 431 (Mo. 1997) (a plaintiff has “no vested property interest” in punitive damages claim); Smith v. Hill, 147 N.E.2d 321, 325 (Ill. 1958) (“a vested right to punitive, exemplary, vindictive or aggravated damages arises only when such damages have been allowed by a judgment); Langford v. Vanderbilt University, 287 S.W.2d 32, 34 (Tenn. 1956) (“[p]unitive damages . . . are allowed as a mere penalty”; “[a] mere penalty never vests but remains executory”); Louisville & Nashville Railroad v. Street, 51 So. 306, 307 (Ala. 1909) (no property right in punitive damages award).

For once, we didn’t have to delve too deeply to find an answer to a legal question (or a subject for a blog post – coming up with ideas daily is no easy matter).  Those are just the state Supreme Court cases that we know about which hold that there is no constitutional right to pursue punitive damages.  Lots of lower court opinions echo these same rulings.  Constitutional challenges have been rejected under due process, taking, jury trial, open courts and various other state constitutional provisions.  It makes sense.  While compensatory damages restrictions might present a closer question (depending on issues such as retroactivity), there’s simply no constitutional basis for one private party having an absoute right to demand that another private party be punished.

Remembrance of Bad Cases Past

Someone (we don't remember who) once said that the mark of a cultured person is the ability to discuss the work of Marcel Proust without ever having read a word of it. Okay, here goes.

Proust wrote A la Recherche du Temps Perdu, which properly translates into In Search of Lost Time, though it traditionally has been called Remembrance of Things Past. Proust offered a theory of voluntary and involuntary memory. (Proust's father, by the way, was an epidemiologist). A voluntary memory is retrieved via conscious effort. Quick: who was your third-grade teacher? By contrast, an involuntary memory hits us unexpectedly. The most famous example of the latter is Proust's recollection of childhood after sniffing some fresh-baked Madeleines. That reminds us of our Evidence professor who said you could refresh a witness's recollection with anything, including a plate of spaghetti.

As we get older, we are getting way worse at voluntary memory, and way more susceptible to involuntary memory.

The other day we saw a very short opinion out of New York called Gianvito v. Premo Laboratories, (N.Y. App. Div., 1st Dept. March 20, 2012). The plaintiffs "allege that they suffered injury due to in utero exposure to the estrogen drug Diethylstilbrenol (DES), and they urge application of the 'market share' theory of liability." In about a page and a half, the Gianvito court decided that New Jersey law applies, that "New Jersey has not formally adopted a market share theory of liability in DES or similar cases," that "such a theory cannot be found based on dicta" from New Jersey cases, and that "to the extent New Jersey law is unsettled on this issue, we decline to expand the law therein to allow plaintiffs to allege a market share theory." It is the right result.

It also brought back memories of our Torts class in law school. These are not necessarily happy memories. Suspicion is provoked when we hear somebody look back with fondness at first year in law school. Still, we learned a couple of things that are worth holding onto besides the lyrics to "Rock the Casbah". For instance, we will always remember how the case of Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980), introduced us to the fact that the law, especially in California, could be utterly crazy. It was not quite a loss of innocence, but it helped prepare us for a couple of decades of batty rulings.

The plaintiff in Sindell was a woman who had developed cancer as a result of her mother's use of DES during pregnancy. Because approximately 200 different companies had manufactured DES, and because so much time had passed, the plaintiff could not identify the manufacturer of the particular DES her mother had taken. She sued the five biggest DES manufacturers, which sold 90% of the DES during the relevant time. What to do? In a 4-3 opinion authored by Justice Mosk, the California Supreme Court held that the plaintiff could proceed on a market share theory of liability. The rule was that if all the defendants are potential tortfeasors, the product is fungible, the plaintiff is legitimately unable to identify the product that harmed her, and a substantial share of the manufacturers who produced the product during the relevant time period are named as defendants, then a rebuttable presumption arises in favor of the plaintiff and she can collect from each defendant a percentage of her damages equal to that defendant's market share at the time the product was used. A manufacturer may rebut the presumption by showing that its product could not possibly have injured the plaintiff.

The Sindell opinion was considered a Very Big Deal in the 1980s. It continued a trend in California law of treating the tort system as a form of social insurance. The plaintiff was absolutely innocent, whereas the defendants had made and sold a dangerous drug. The manufacturers were in a better position than the plaintiff to bear the costs and guard against future harm. Arguably, deterrence would be undermined if all manufacturers of a dangerous product eluded liability. Sindell was judicial policy-making plain and simple. You could debate whether it was good or bad policy, but you could not pretend it was not policy.

Sindell was also a pretty long walk down the road of collective responsibility. Sure, there have been other cases involving joint tortfeasors where it was hard to discern the specific culprit, such as a pair of quail hunters negligently discharging their shotguns toward a fellow hunter (Summers v. Tice, 33 Cal. 2d 80 (1948)) or one member of a hospital operating room screwing up (Ybarra v. Spangard, 25 Cal. 2d 486 (1944)), but the Sindell opinion puts a defendant on the hook merely for being in the marketplace. The opinion repeatedly cites a Fordham Law Review article, and in an oral memoir Justice Mosk stated that the article is what gave him the idea. Let that serve as proof of the pernicious influence of law review articles. Surely, we cannot be the only practitioner who regards law review articles as being somewhat useful to the extent they collect and categorize cases, but invariably useless when they go on to propose some new 'solution'.

The question back in the 1980s was whether Sindell was blazing a new trail or whether it was an aberration, a dead-end. We think it was mostly the latter. Gianvito is the latest example of a court refusing to buy the Sindell burden-and-cost-shifting theory. And courts have usually refused to extend Sindell beyond DES. True, the resolution of asbestos and Agent Orange litigation had some Sindell-stink. But they are isolated, regrettable exceptions. Most products are not perfectly fungible. Not all manufacturers act in the same way. Thus, in Skipworth v. Lead Industries Ass'n, 690 A.2d 169 (Pa. 1997), the court declined to apply market share liability to manufacturers of lead-based paint. Lead-based paint is not fungible. Plus, the house in question had been around for a century.

We are not comfortable with collective responsibility. We want evidence that a particular defendant did something wrong and harmed this particular plaintiff. If we remember correctly, in A Civil Action (the book, not the movie) there is a discussion of a hypothetical involving a plaintiff who was hit by a school bus. The plaintiff could not identify the particular school bus. There were two school bus companies in town -- call them A and B. Assume that A has 80 percent of the buses in town, and 80 percent of the business. Is that 80 percent share enough to prove by a preponderance of the evidence that A was liable? Or should the plaintiff recover 80 percent of her damages from A and 20 percent from B? Don't these approaches, while making sense on some sort of macro-epidemiological-social-insurance level, offend one's sense of justice?

On the whole, it seems to us that the judiciary has retreated from activism. Most judges are content to interpret law rather than engage in social engineering. Judicial activism is perilous. If you are going to act like a policy maker, then you will be treated like one. That is why SCOTUS confirmation hearings turned so ugly. If judges will make policy, they need to answer questions about their policy predilections. So the logic goes, anyway. Mind you, we write this hot on the heels of the Affordable Care Act oral arguments. It's heady stuff when we are thrust back on thoughts of Wickard and Lochner.

This is not to say that we are completely out of the woods. Sindell has mostly been relegated to the ash-heap of legal history. But its notion of assigning liability to defendants that did not manufacture the product in question has not completely vanished. Not surprisingly, it was a California court that issued the execrable Conte opinion, permitting a brand manufacturer to be held liable to a plaintiff who took the generic product. As we explained here, Conte is even worse than Sindell because the allegedly limiting factors in Sindell were absent in Conte. In Conte, the manufacturer of the peoduct at issue was known, and there was no long-delayed injury. We look forward to the day when the Conte doctrine is only a bad memory.