This post is from the Reed Smith side of the blog only.
Yesterday was National Punctuation Day; it is a good time to administer a semi-colonic to turgid prose. Today we apply an exclamation mark to our unhappiness with judges whose choice of law principles seem not so, er, principled.
Last Thursday, Bexis commented on the New Hampshire federal judge in the Atrium litigation who invariably applies New Hampshire law no matter what. We offer a few more words on In Barron v. Atrium Med. Corp., 2019 U.S. Dist. LEXIS 151042 (D. N.H. Sept. 5, 2019), in which the plaintiffs sued three related companies under various product liability and warranty theories, alleging injuries from implanted hernia mesh. The surgical procedure took place in Pennsylvania. The first named defendant, Atrium, was located in New Hampshire, where the lawsuit was pending, while the other two defendants were in New Jersey and Sweden.
The defendants filed motions to dismiss the complaint. The defendants argued that Pennsylvania law governed the claims, and that those claims flunked Pennsylvania law. The plaintiffs responded that it was too soon to decide choice of law, but that if a choice had to be made at this point, then New Hampshire law should prevail.
(A question mark popped up in a thought bubble over our head when we saw a defendant plump for product liability law. Can New Hampshire law really be that bad? And then we remembered that the Bartlett case came out of New Hampshire.)
In any case, this much is clear: New Hampshire choice of law principles govern. As with many states, the first question is whether an actual conflict exists. If there is no conflict, why burn up calories worrying over choice of law? Here, there is a very real conflict on the strict liability claim, because Pennsylvania does not smile upon strict liability design defect claims against medical devices, whereas New Hampshire apparently says Live Free and Sue. The other claims are treated similarly in the Keystone and Granite states, so the New Hampshire federal judge would apply New Hampshire law to them. So far so good. But now the New Hampshire federal judge needed to decide whether to apply New Hampshire or Pennsylvania law to the strict liability claim. Do you follow us so far? Do you have a suspicion where this is going?
New Hampshire employs a five factor test for choice of law:
1. predictability of results;
2. maintenance of reasonable orderliness and and good relationship among the states in our federal system;
3. simplification of the judicial task;
4. advancement by the court of its own state’s governmental interests rather than those of other states; and
5. The court’s preference for what it regards as the sounder rule of law.
Whenever we see a multi-part test, we prepare ourselves for an outcome-driven exercise in rationalization. Here we go. The Barron court concluded that the first three factors “have little or no relevance in this case.” Hmmm. We are skeptical. The court admits that it is more familiar with New Hampshire law, but says it could just as easily apply Pennsylvania law. Sure. But it won’t. By the way, don’t the second and fourth factors seem at least slightly in conflict? And if the court is the tiniest bit pro-plaintiff or anti-dismissal, don’t the fourth and fifth factors potentially swallow up everything else and make inevitable a preference for a local pro-plaintiff rule every time?
That is what happened here. In contrast to Pennsylvania’s nuanced approach to strict liability claims versus medical devices, the Barron judge tells us that New Hampshire believes that “if today’s products are capable of causing illness or physical injury, the risk of liability is best borne by the companies that profited from their sale, rather than by the unfortunate individual consumers.” To our graying noggin, this formulation sounds less like New Hampshire in 2019 and more like California (courtesy of Justice Traynor) in the 1950s. We would have thought that New Hampshire, home of flinty New Englanders steeped in self-reliance, might not so whole-heartedly embrace the notion of wealth redistribution and social insurance. Silly us.
The New Hampshire federal judge ends up deciding – surprise! – that New Hampshire product liability law is better (i.e., more anti-corporate) than Pennsylvania law and, therefore, New Hampshire law carries the day. The court denied the defendants’ motion to dismiss.
A New Hampshire federal judge preferred New Hampshire law. In the words of one-time New Hampshire resident Robert Frost, “and that has made all the difference.”