Outrageous fortune and the criminalization of mass torts.

Author:Nagareda, Richard A.



    1. Linking Plaintiffs and Defendants in Tort

    2. Causation, Crime, and Moral Condemnation II. BLAME, FORTUNE, AND MASS TORTS

    3. Scientific Causation

      1. When Initial Suspicions Prove Wrong

      2. Bankruptcy as Moral Condemnation

    4. Risk-Decisional Causation

      1. Addiction and Fraud

      2. Independent Sources of Risk Information


    6. The Advantages of Remedial Flexibility

    7. The Importance of Institutional and Doctrinal Constraints

      1. The Role of Political Institutions

      2. Mens Rea, Deterrence, and the Significance


      The case of the blameworthy-but-fortunate defendant has emerged as one of the most perplexing scenarios in mass tort litigation today.(1) One need look no further than the front page of the newspaper to find examples of mass tort defendants said to have engaged in irresponsible conduct -- even conduct that one might regard as morally outrageous in character(2) -- but that nonetheless advance eminently plausible contentions that they have not caused harm to others.

      This issue is not merely a matter for abstract speculation. A now-familiar mass tort scenario involves a defendant that markets a product without informing consumers about tentative suspicions of some health hazard. These initial suspicions, however, ultimately may not prove true. In fact, subsequent scientific research may support, perhaps convincingly, a contention by such a defendant that there simply is no causal link between its product and the malady from which the plaintiff suffers. The most prominent example of this first scenario is the ongoing controversy over silicone gel breast implants.(3)

      A second and even more problematic situation involves a defendant that does not merely fail to warn consumers about a risk that may be associated with its product, but that affirmatively induces repeated use through outright fraud or obfuscation of the product's risk. This second scenario describes the allegations advanced in the current controversy over nicotine in tobacco products.(4) Here, the problem also is one of causation, but of a different sort: the centuries-old awareness of the hazards of smoking, including the widespread recognition that the practice can be exceedingly hard to quit,(5) makes it difficult to attribute the maladies of current smokers to an informational shortfall brought about by the tobacco industry. Fraud is the cause of harm, after an, only when one's fraudulent misrepresentations are apt to be believed and acted upon -- only when, at the very least, other people are not saying loudly that one is lying.

      In this respect, the causal problem posed by the tobacco litigation is by no means restricted to that particular context. Rather, the same concerns likely would surface with respect to the many variations on the same theme that one might envision in the future for the alcohol industry, the fast-food industry, or the purveyors of other products with long-recognized health risks.

      For all their salient differences, the contentions raised in both the tobacco wars and the breast implant litigation reflect a common theme. Both litigations are instances of what I describe here as "outrageous fortune" -- situations in which a manufacturer may have engaged in conduct that many might regard as irresponsible or morally culpable, but where that manufacturer, nonetheless, may have had the sheer good luck not to cause harm to consumers.

      To put the point mildly, the results thus far in the implant and tobacco litigations have not tracked neatly what one might have expected from substantive tort doctrine. Notwithstanding what appear to be formidable obstacles grounded in the tort requirement of causation, defendants have not emerged unscathed. Quite to the contrary, the leading implant manufacturer, Dow Corning, currently is in the midst of a lengthy reorganization proceeding under Chapter 11 of the Bankruptcy Code.(6)

      The tobacco industry has been affected even more dramatically, in the form of congressional consideration of national legislation. Although its precise parameters remain to be seen, such legislation will seek to build upon the much-debated $368.5 billion proposal hammered out in the summer of 1997 by the tobacco industry and various state attorneys general.(7) In exchange for more definite limitations upon its long-term financial obligations in tort, the tobacco industry has demonstrated its willingness to embrace measures that not only would require the payment of billions of dollars, but also would entail unprecedented government regulation of the marketing and advertising of tobacco products. Whatever the ultimate fate of any national legislation, both the process that led to its formulation and the treatment that it receives in the political arena are likely to be the subjects of extensive discussion within the legal, public health, and public policy communities for many years to come.

      The foregoing developments, I submit, are not readily comprehensible within the framework of existing mass tort scholarship, which has tended to take as its principal focus the ways in which mass tort litigation has pushed at the boundaries of existing legal procedures. The debates over both the desirability of class actions(8) and the merits of bankruptcy proceedings(9) in this area are just two of the more prominent illustrations of this procedural perspective. These certainly remain important and challenging issues, but, in focusing on them, both courts and commentators have devoted too little attention to the ways in which mass tort litigation increasingly pushes at the boundaries between systems of substantive law: specifically, the border between tort and criminal law. A blurring of substantive law, and of the institutional roles contemplated by each system, has taken place virtually unacknowledged by courts, litigators, or the legal academy. Put simply, recent developments reflect the use of mass tort litigation as a vehicle for moral condemnation of defendants, wholly apart from the causation of harm to tort plaintiffs. My contention here is that moral condemnation should take place not through the vehicle of tort litigation but, if at all, through democratic deliberation in the political process.

      This is not to say that tort litigation and democratic deliberation are completely unrelated to one another. Insofar as the tobacco litigation has provided a significant impetus for debate through legislative channels, that debate itself stands as a desirable and long-overdue effort to grapple seriously with the difficult issues of public policy in the area -- potentially in ways that may focus the moral opprobrium of society upon the tobacco industry. By contrast, there has been little public deliberation over the basic question of whether the conduct of implant manufacturers warrants moral condemnation of any sort in the face of formidable doubt about the causation of harm. Tort litigation can play a useful role in identifying product safety issues in a manner independent from political institutions, but such litigation represents an unwieldy vehicle for the societal resolution of such matters, especially when moral condemnation of defendants might be warranted wholly apart from the compensation of tort plaintiffs.

      In Part I, I start with the familiar observation that tort law insists upon a causal connection between even a highly blameworthy defendant and some injured plaintiff as the essential predicate for a judgment of liability. By contrast, criminal law has long punished conduct that falls well short of a completed crime, though it does so subject to important institutional and doctrinal limitations.

      As detailed in Part II, the practical effect of recent mass tort litigation has been to draw haphazardly and without any apparent acknowledgement upon the moral condemnation function of the criminal law. Here, I analyze two sorts of mass tort disputes: the first, as suggested above, centers upon science -- specifically, the question of whether the product at issue is capable of causing harm to anyone. As I explain, the results of the implant litigation are explicable not by any resolution of the debate over scientific causation squarely in plaintiffs' favor; indeed, that debate has largely been resolved to the contrary. Instead, the progress of the implant litigation is explicable more by a concern on the part of manufacturers like Dow Corning -- well-grounded in the results of early implant lawsuits -- that jurors might be prepared to return damage verdicts based principally upon a sense of moral outrage over defendants' conduct.

      A second type of mass tort dispute also implicates the requirement of causation, but it focuses upon the decision of the plaintiff to use the product in question. Litigation of this sort turns heavily upon the availability of risk information from sources other than the defendant -- information that may shed considerable doubt upon the contention that the defendant's silence, or even outright fraud, caused the plaintiff to use the product. To illustrate this second category, I take as my focal point the tobacco litigation. In fact, recent events in the tobacco area stand as the most striking example of the degree to which mass tort litigation has drawn, sub silentio, upon criminal notions.

      In the same Part, I go on to observe that the breast implant and tobacco litigations -- two of the most sharply debated mass tort scenarios in recent years -- are not simply the products of idiosyncratic situations. Instead, I contend, the bringing of mass tort claims against arguably blameworthy defendants in the face of substantial causation questions stems from broader and more enduring suppositions -- specifically, from the ways in which mass tort litigators conceive of jury decisionmaking and from the interaction between litigation and other means by which to draw public...

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