Travel back with us, if you will, for forty years.

Before 1965, “[t]he entire field of product liability law was largely quiescent.” Richard A. Epstein, Journal of Tort Law, Vol. 1, Iss. 1, Art. 5, at page 5 (2006). The drafting of the Restatement (Second) of Torts in 1965 changed that. The late 1960s and early 1970s saw product liability law transmogrified from a lap dog into a raging beast. The “modern causes of action based on overpromotion or insufficient warnings were . . . creatures of the early 1970s and not any earlier time.” Id. at 7.

Before the Restatement could work its transformative wonders, however, the current version of Federal Rule of Civil Procedure 23(b)(1)(A) became effective in 1966. That rule allows courts to certify cases as class actions if the prosecution of separate actions would create a risk of “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.”

In 1966, that provision could not have authorized certifying mass torts as class actions. For starters, mass torts simply didn’t exist in 1966. The phrase “mass tort” didn’t enter the language until the 1980s.

Moreover, and key to today’s post, no one saw tort law as imposing “standards” on defendants in 1966; that perception emerged only as tort law became expressly regulatory in the 1970s and later. As of 1966, tort law was not regulatory, so inconsistent verdicts in tort cases could not possibly impose “inconsistent standards” within the meaning of Rule 23(b)(1)(A). The cases consistently so held. See, e.g., La Mar v. H&B Novelty & Loan Co., 489 F.2d 461, 466 (9th Cir. 1973) (actions involving monetary damages will
“[i]nfrequently, if ever” qualify under Rule 23(b)(1)(A)).

Today, the plaintiffs’ bar routinely seeks to graft new tort doctrine onto old Rule 23. Mass tort plaintiffs’ counsel almost invariably assert that judgments in tort cases are meant to impose standards on defendants. If, for example, a jury finds a warning to be inadequate, the defendant should change its warning in response to the verdict. This internalizes costs, maximizes public safety (so counsel say), and lets tort law do its regulatory work.

But plaintiffs’ counsel quickly change their tune later in modern drug and device litigation. Defendants in those cases plead the defense of conflict preemption, which requires the defendant to show either that it is is impossible to comply simultaneously with both state and federal law or that state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The defendant thus says that tort law is regulatory; if a jury imposes liability for failure to warn, the defendant is regulated. The defendant is coerced into changing its warnings in a way that varies from the FDA-mandated warnings on its products, so the preemption defense applies. (Throw in a dose of non-mutual offensive collateral estoppel — which sprung into existence only with Parklane Hosiery in 1979 — and it’s hard to see how defendants are wrong on this point. But then, on this blog, we never see when defendants are wrong; if that ever happens, we close our eyes.)

At this point — when litigating the preemption defense — plaintiffs change their tune.

Plaintiffs promptly abandon the position they pressed at the class certification stage — that tort law is regulatory and inconsistent jury verdicts would impose “incompatible standards” on a defendant — and now insist that jury verdicts are not regulatory at all. “A defendant could simply pay the verdicts and continue on with its past practices,” they say. “Jury verdicts don’t compel conduct.”

A foolish consistency must be the hobgoblin of little minds, huh?

We see four lessons here, one for every part of our legal community:

First, the plaintiffs’ bar should stop doing this. Pick a position and live with it. You can’t press flatly inconsistent positions on the same issue in the same case.

Second, defense counsel should be careful. The dilemma that confronts plaintiffs is a two-sided one; defendants must phrase their arguments at the class certification stage carefully to avoid eating their words later in the case.

Third, judges should be on the lookout for this. Counsel often get caught in the heat of the moment, pressing the argument that serves today’s interests at the possible expense of the future and later pressing a new argument that ignores what counsel said before. Do not let those inconsistencies infect the fabric of the law.

Finally, scholars. Think about what we’ve written here. Is there a consistent position that would permit a party to pursue its interests at both the (b)(1)(A) certification stage and when the preemption defense arises? We have ideas here: Courts can, for example, properly reject (b)(1)(A) certification based on the possibility of inconsistent jury verdicts without denying the regulatory aspects of modern tort law. If the possibility of inconsistent verdicts permitted (b)(1)(A) certification, then Rule 23(b)(3) would improperly be read out of existence.

But we then turn over in our minds the possible responses to that argument, and responses to the responses, and we’re not sure where it leads. (But we’re darned sure that we — lawyers who must continue to defend clients in the future — cannot post everything that we’re thinking on a blog that is open to the public.)

Moreover, for scholars, there are probably more rows to be hoed here, since academics have the time to do the spadework. Perhaps the meaning of Rule 23 was fixed by the intent of its drafters in a way that the judicially-created doctrine of implied preemption is not. (Or perhaps that’s wrong, since preemption is rooted in the Supremacy Clause of the Constitution.)

Heck, don’t ask us; we just work here. But we have lots of questions about the apparent tension between Rule 23(b)(1)(A) and the preemption defense, and we’d sure like someone with intelligence and time to tell us what the answers are.