Back in the late 1990s, the extension of the traditional legal concept of public nuisance to the litigation involving lead paint gave the plaintiff bar a way around conventional product liability law. The results included the landmark Rhode Island lead paint public nuisance trials as well as the pending ones in Ohio and California. Here is my [free] e-book on public nuisance Download publicnuisancevoodoo.pdf.
We might witness the same kind of legal game-changer with the ruling in "Conte v. Wyeth Inc." Last Friday, in San Francisco, CA 1st District Court of Appeals, Justice Peter Siggins held - with Justices William McGuiness and Stuart Pollack concurring - that corporations which make brandname drugs are also liable for any harm caused by competing generic versions of that drug. On their influential blog Drug and Device Law as well as media interviews, attorneys Mark Herrmann [Jones Day] and James Beck [Dechert] opined that this ruling could stand conventional product liability law on its ear.
As Mike McKee reports in THE RECORDER, "The case involved New Jersey-based Wyeth, which was sued in San Francisco by a woman named Elizabeth Conte. She claimed she developed a serious and irreversible neurological condition after long-term use of generic versions of Wyeth's Reglan, also known as metoclopramide, to treat gastroesphageal reflux disease."
Does "Conte v. Wyeth Inc." have the serious legal implications that we tort reformers fear? Probably.
CA is a trend-setting state. That's exactly why lead paint watchers are holding their breath on the CA Supreme Court's review of the appeals court holding to allow contingency in public nuisance cases, when those cases are fully controlled by the government entity filing the suit. Here is that CA appeals court decision Download H031540.pdf.
Moreover, there is a resurgence of the influence and power of both the plaintiff bar and state attorneys general. It's as if Scruggs et al. never happened. The return of the Dems to the White House and their control of Congress reinforce that. It's the '60 all over again. I know. I was there. The push of populism, thrice-fried by the stumbles of the current administration, puts just about every institution, from government to academia to business on the defensive.
The way to manage this, or even exploit it? Just as they did in the '60s. The shrewd, such as industry, took on the protective coloring of The Movement. In fact, counterculture commerce made a bundle piggybacking on the sights and sights of revolution.
Tort reformers can mirror the ideology, arguments, and even behavior of those now dominating the court of law and the court of public opinion. That marks the end of the smug, bemused rhetoric of conservative media such as THE AMERICAN SPECTATOR. Those in the front lines of tort reform will be expected to have a heart, not just an Ivy League-trained brain.
Disclosure: At Ivy League Harvard Law the chip on my working class shoulder grew exponentially.