Photo of Bexis

That’s the main lesson of the emerging fiasco that is the ALI’s benignly named “Concluding Provisions” project for the Restatement Third of Torts.  While this title suggests that the Institute is merely engaged in routine “mop up” work, nothing could be further from the truth.  Any number of significant tort-related topics were not addressed by prior Restatement Third projects, such as:

Medical malpractice and informed consent;

Sovereign immunity;

Implied statutory rights of action;

Statutes of limitations;

Wrongful death and survival actions

Wrongful birth/life and actions for harm to a fetus;

Vicarious liability;

Insurance bad faith;

Government contractors;

Spoliation of evidence as a tort;

Dram shop liability;

Contractual releases of liability.

The “Concluding Provisions” project intends to cover all of these topics, and more.  Restatement of the Law Third Torts:  Concluding Provisions, Preliminary Draft #2, at xxiii-xxiv (August 16, 2021).

Basically, we need more defense-minded ALI members to show up.

A combined in person and Zoom meeting of the Concluding Provisions Advisers and Members Consultative Groups took place at the ALI’s West Philadelphia headquarters on September 9-10.  A lot happened at that meeting, and not much of it good from our defense-oriented standpoint.  For instance, disclosure of confidential patient information would become a form of medical malpractice, id. at 245, and informed consent would include any “other relevant information that the provider is aware the patient reasonably wants to know.”  Id. at 306.  Lawyers defending health care providers beware.

More relevant to our neck of the woods − both innovator liability and medical monitoring were on the agenda.  As to innovator liability, see id. at 70-71 (comment o, allowing innovator liability), 83-84 (reporters’ notes stating the courts dismissing innovator liability claims “fail to appreciate that there is a non-product liability claim that exists for negligent misrepresentation that does not require the relationship that product liability claims do”).  That’s right, even though only one jurisdiction in the country allows branded drug manufacturers to be sued in negligence for misrepresentations in generic drug labeling, see our scorecard here, this “Restatement” proposal would allow it.  As to medical monitoring, see id. at 369-409 (proposing to recognize liability for medical monitoring in the absence of any present injury even though “approximately half [of jurisdictions] permit recovery, while approximately half do not, and there is no clear trend either for, or against, acceptance”).

Despite these disturbing − at least from the perspective of those who oppose universal tort liability – proposals, practically nobody who shared our perspective bothered to attend the meeting.  Besides Bexis, one recognizable defense-side name usefully participated in the innovator liability discussion on Thursday, but then was absent when medical monitoring was discussed on Friday.  Two other recognizable defense-side names participated in the medical monitoring discussion, but only one actually opposed the proposal for the ALI outright to recognize that controversial tort.

We’re left wondering, where were all those ALI members who agree with us that:  (1) innovator liability is an existential threat to the branded drug industry, and (2) allowing every uninjured, allegedly at-risk person to sue for medical monitoring is bad legal policy and worse allocation of societal resources?  It’s not like the ALI’s proposals were a secret.  Any ALI member can join a Members Consultative Group.  The relevant draft was publicly available for weeks to any ALI member who cared to take a look.  The pro-liability side was out in force – both lawyers for the left side of the “v.” and academics whose temperament and economic interests favor ever-increasing liability and litigation.  They were numerous, vocal, and well spoken.  We admire their commitment, as much as we disagree with their positions.

We wish we saw similar commitment from defense-minded colleagues.  The ALI’s ethos is that members “leave their clients at the door.”  That doesn’t mean, however, leaving one’s own views at the door, and it does require actually walking through the door.  Unfortunately, our side went virtually AWOL.  There must be a couple dozen ALI members at the big defense firms in Philadelphia (including ours – nobody is exempt from this critique), who could have attended in person.  Probably twice as many right side of the “v.” potential ALI advocates reside/work the AMTRAK northeast corridor between Washington, DC and New York City, and could have hopped the train.  And any ALI member, anywhere could have participated via the ALI’s (sometimes glitchy) Zoom connection.

Frankly, it’s damn frustrating banging one’s head against that ALI wall with little or no support – even before an ALI representative decides to put another thumb on the scale in favor of increased liability.  It’s no fun getting your head handed to you for seven hours straight.

Bexis proposed to delete all references to innovator liability from the section on negligent misrepresentation and to replace the ALI’s endorsement of medical monitoring with “yes” and “no” alternatives that would accurately reflect the current state of legal equipoise.

In connection with the innovator liability issue, Bexis provided the reporters with links to both the Blog’s innovator liability scorecard and our 50-state survey on innovator liability, which compiles caselaw rejecting innovator liability from 49 states, the District of Columbia, and Puerto Rico.  While the Reporters will “consider” this caselaw, it is by no means certain at this point that they will follow the overwhelming majority rule, the Restatement Third of Torts:  Products Liability §9 (1998), and the Restatement Third of Torts:  Liability for Physical & Emotional Harm §7(b) (2010), and delete the endorsement of minuscule innovator liability minority position that appears in the current draft.  Concluding Provisions, Preliminary Draft #2, at comment o, pp. 70-71.

As for medical monitoring, Bexis proposed what the same draft had recommended twice in other situations where the law was in equipoise − §9(c) on informed consent, and comment j on whether medical monitoring was a separate cause of action or a remedy.  His proposal was for the Institute to offer alternative sections reflecting the two alternative results that have been recognized by the courts.

Not this time.  Where the question was liability, yes or no, the pro-liability position was rammed through, consistency be damned.

Yes, an ALI “restatement” need not always respect legal “equipoise,” and can even adopt a minority view if there is strong reason to do so, such as when the distinct trend of recent caselaw is contrary.  Concluding Provisions, Preliminary Draft #2, at xii-xiv.  That isn’t the case here, and even if it were, the discussion in the draft is neither clear nor transparent.  Justice Cardozo famously held that “[n]egligence in the air, so to speak, will not do” to create a tort duty.  Palsgraf v. Long Island Railroad Co., 162 N.E. 99, 99 (N.Y. 1928).  Similarly, Professors Prosser and Keeton believed that “[t]he threat of future harm, not yet realized, is not enough” to support tort liability.  W. Page Keeton, et al., Prosser & Keeton on the Law of Torts §30, at 165 (5th ed. 1984).  The United States Supreme Court rejected medical monitoring for federal causes of action in Metro-North Commuter Rail Road Co. v. Buckley, 521 U.S. 424, 435-36, 442-45 (1997) (FELA case).  So, in recent years, have the highest courts of major states such as New York and Illinois.  Berry v. City of Chicago, ___ N.E.3d ___, 2020 WL 5668974, at *6-7 (Ill. Sept. 24, 2020); Caronia v. Philip Morris USA, Inc., 5 N.E.3d 11, 14 (N.Y. 2013).  The product liability section of the Third Restatement expressly limits recovery for product-related claims “only to harm to persons or property, commonly referred to as personal injury and property damage.”  Restatement (Third) of Torts, Products Liability §1, comment d (1998).

Why are all these conclusions wrong, and the no-injury liability expansionists right?  From the ALI’s draft, it’s very hard to say, particularly since the no-liability view is only presented as a contrary position to be debunked.  The ALI’s draft condescendingly introduces no-liability position:

Notwithstanding these advantages, some courts decline to permit pure medical monitoring claims, and certain commentators promote the more skeptical stance.

Concluding Provisions, Preliminary Draft #2, Medical Monitoring, Reporters Notes to comment b, at 382-86.  Similarly disparaging comments pepper the Reporters’ Notes:  “notwithstanding the above support,” “belied by the evidence,” “objections are overstated,” and “exaggerated,” and thus betray a deep-seated bias in favor of liability.  In support of medical monitoring liability, the notes even invoke a concept, “avoidable consequences,” id. at 381-82, that another section of the Third Restatement abolished.  See Restatement (Third) of Torts, Apportionment of Liability §3, comment b (2000).

It would not be difficult to present a more balanced view of the evenly divided fashion.  Heck, if the reporters couldn’t bring themselves to do it, Bexis even offered to draft a comment presenting the no-liability position himself, since all he’d have to do is update, and maybe expand a bit, his amicus curiae brief in CaroniaSee Brief of Amicus Curiae Product Liability Advisory Council, Inc. in Support of Defendant-Respondent Philip Morris USA, Inc., 2013 NY App. Ct. Briefs Lexis 130 (N.Y. filed Oct. 4, 2013).

Offer refused.  Liability uber alles.

The reporters did, however, seem a bit uncomfortable with untrammeled no-injury medical monitoring claims.  It is, after all, not easy to justify allowing 1,000 people all to sue for medical monitoring when, statistically, only seven of them would ever suffer the claimed risk.  Concluding Provisions, Preliminary Draft #2, Medical Monitoring, Illustration 3, at 374.  We guess that’s supposed to be a “significant” increased risk.  So the draft attempts to “cabin” “unqualified and unbounded” medical monitoring liability with a couple of novel provisions:

(c) the person has incurred the monitoring expense, will incur the monitoring expense, or would incur the monitoring expense if he or she could afford it; and

(d) the actor’s liability is neither indeterminate nor overwhelming.

Id. at 369 (black letter).  Similarly comment m expresses a “preferred approach” for a “court-administered and supervised fund” – something foreign to any other tort that we’re aware of in the Third Restatement, and thus not in harmony with the larger body of tort law.

These attempts to paper over the inherent problems of no-injury medical monitoring claims were strongly attacked by the meeting’s pro-plaintiff contingent as unsupported by the law.  On that point, we’re forced to agree with them.  In trying to dilute the enormity of the legal change they are proposing that the Institute endorse, the reporters created a legal chimera – a set of elements called “medical monitoring” that has not, in fact, been adopted by any state in the country.

Instead, as the draft admits, the states have split evenly between a more expansive form of “medical monitoring” liability and no liability for “medical monitoring” at all.  The overall lack of support for what the reporters have spun as some sort of (non-existent) middle ground is yet another reason why the dual approach is particularly appropriate in this situation.  Nor does would-be subsection c’s removal of medical monitoring from the collateral source rule make sense from a policy standpoint.  Why should the ALI advocate for creating a new system of litigation, with all its attendant costs and inefficiencies, given that only a small percentage of potential plaintiffs would be out of pocket for monitoring costs?  Only lawyers always appear to benefit.  Or is medical monitoring to become a subrogation stalking horse for insurance companies?

We could go on – Bexis did go on at the recent meeting, but it was awfully lonely.  If ALI members with defense oriented viewpoints (and in-house members, too, if there are any) aren’t going to show up, then we’re just shouting into the void.