We’ll get to today’s case in a moment, but first, a few words about SCOTUS and expiration dates.
One hundred and one years ago tomorrow saw the birth of Lewis Powell, who served as a United States Supreme Court Justice from 1972 to 1987. Powell succeeded Hugo Black. More interesting, considering current events, is that Powell was succeeded by Anthony Kennedy. Whether Judge Brett Kavanaugh succeeds Justice Kennedy is a matter of some some controversy. One reason for that controversy is that Justice Kennedy was often a swing vote. In a prior post, we recounted our one close encounter with Anthony Kennedy. He impressed us as a smart jurist who was determined to do the right thing. Still, it must have seemed somewhat vexing to SCOTUS litigants that everything likely turned on the predilections of one Justice. The other eight Justices often seemed predictable, almost a done deal. But Justice Kennedy, at least on some issues, was the wild card. We have no evidence that Justice Kennedy purposely positioned himself as the swing vote, or that he reveled in his inflated importance, but his importance as a swing vote was undeniable.
We have also seen no evidence that Justice Kennedy patterned himself after his predecessor, but it is remarkable how similar they were in locating themselves right at the center of the Court. Justice Powell was often a swing vote. If our affirmative action jurisprudence is a bit of a mess, some of the blame for that must go to Justice Powell, whose controlling opinion in the 4-1-4 landmark Bakke decision created a slippery standard that sprung from Powell’s idea of the perfect academic affirmative action program – the Harvard College admissions system. Even back in 1978, it was pretty obvious that the Harvard system was not quite the holistic, individual-respecting scheme that Powell portrayed. (The legal defense of U.Cal Davis Medical School’s affirmative action program was entrusted to the great Archibald Cox. During oral argument, Justice Blackmun asked whether the set-aside seats could be compared to athletic scholarships. Cox replied, “Well, I’m from Harvard … “ – laughter intervened – “I don’t know whether that’s our aim, but we don’t do it very well.”) Given the current lawsuit challenging Harvard admission policies, the Bakke compromise and its progeny seem even more fragile.
The story of how Powell came to be appointed to the High Court was told in Bob Woodward’s book, The Brethren. (We hear Woodward has another book out.) President Nixon was politically hobbled in 1972. In trying to fill an earlier SCOTUS vacancy, Nixon had two of his selections rejected by the Senate. Powell was an interesting choice. He was from Virginia, which fit in with Nixon’s southern strategy. But Powell would not fit into what we now consider the usual mold. He had never been a judge. (Black had been a senator, not a judge. Chief Justice Warren had also been a politician. Douglas headed the SEC. It used to be acceptable for Justices not have to have a judicial track record. Why the change?). Powell was a corporate lawyer. He represented the tobacco industry. He was a leader in the ABA. He wrote a famous memo about how corporate America should deal with a hostile media. There were plenty of reasons why Nixon would have liked Powell. But there was one important reason why Powell would be acceptable to Senators who weren’t enamored with Nixon: Powell was 64 years old. Woodward reported that a Senator waved a cigar and told Powell why he would be confirmed: “We think you’re going to die.” (Powell himself was not all that fired up to join SCOTUS. He had turned down an earlier offer. He did not think he had the constitutional law chops of a Douglas, Black, or Brennan. Plus, he was not eager for the huge pay cut.)
Recently John Oliver’s Last Week Tonight show argued for eliminating life tenure for judges. Oliver supported a proposal for staggered 18 year terms. (Powell served 15 years on SCOTUS.) Every four year presidential term would include an opportunity to appoint at least two SCOTUS justices. The system would permit reasonable turnover. It would avoid the dangers of a gerontocracy. It might somewhat reduce the temperature of SCOTUS confirmation hearings, since there wouldn’t be a multigenerational impact at stake. Such a change would require a constitutional amendment. Spoiler alert: it won’t happen. But while we’re just dreaming, we have another reason for cuddling up to this idea. When presidents harbor the hope of appointing a Justice who will support certain policies/rules for thirty years, that means they will select relatively young people. That elevate-them-when-they-are-young approach also offers the advantage of proffering someone with a limited paper record and a limited target area for skeptical senators. Thus, instead of a SCOTUS appointment being the capstone of a long, distinguished career, it is more and more conferred on jurists in mid-career. As we slouch toward dotage, we less and less like the idea of such important jobs going to juveniles. Frankly, we hate seeing presidents and Supreme Court Justices younger than ourselves. It is an annoyance almost as painful as being forced by some website to enter our birth year in a drop down menu, and scrolling down and down. And down.
[Quick quiz: Which Supreme Court Justice served the longest term? Answer below.]
Why are we pondering these issues at this moment? Obviously, the ongoing Kavanaugh kerfuffle is top of mind. We also find ourselves ruing life tenure when we read a judicial decision that seems gruesomely wrong-headed.
And now we get to today’s case.
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In Sumpter v. Allergan Inc., 2018 WL 4335519 (E.D. Mo. Sept. 11, 2018), the plaintiff brought suit over ruptured silicone breast implants. The implants were premarket approval (PMA) medical devices. As the Sumpter court acknowledges, the Medical Device Amendments Act “preempts claims challenging the safety and effectiveness of … PMA devices.” Federal law dislodges any state laws (including via jury verdicts) that are “different from, or in addition to, any requirement applicable under [federal law].” In the face of this rather clear preemption, the plaintiff in Sumpter ditched her design defect and failure to warn claims. All that was left was the claim for manufacturing defect. And here begins the Sumpter court’s descent into sheer awfulness. As a preliminary matter, the Sumpter court tells us that, “[g]enerally, manufacturing defect claims that allege the ‘manufacturer failed to adhere to the specifications imposed by a device’s PMA’ are not preempted at the pleading stage.” That quote is from the 2009 Hofts decision out of the Southern District of Indiana. More than once, this blog has derided Hofts for its mangling of Riegel and Twombly and Iqbal. Hofts made our list of the ten worst decisions of 2009. Most courts that have considered Hofts have rejected it. But not the Sumpter court. If anything, Sumpter manages to multiply Hoft’s errors. First, the plaintiff, as is all too typical, never comes close to specifying what the manufacturing defect was. Second, the Sumpter court’s standard for assessing what constitutes a manufacturing defect is altogether wrongheaded. A manufacturing defect happens when the product is out of spec from its design. Something about the particular product is different from a product that is manufactured correctly. Maybe something is in there that shouldn’t be, or something is missing. Or a component was flawed. But that is not the Sumpter court’s test. No, the Sumpter court concludes that a claim for manufacturing defect will lie when plaintiffs say that the products differed from the “intended result.” What does that mean? Presumably, a case was brought because someone was injured. That is never the “intended result.” Does “intended result” end up requiring a perfection that exists nowhere in the law, on any assembly line, in any product portfolio, or, indeed, on our planet? Moreover, the mere existence of a malfunction cannot, by itself, give rise to an inference that the manufacturer violated the FDCA. Where is there any basis to invoke the infernal Riegel “parallel violation”? Through the Sumpter looking-glass, every product liability case contains a manufacturing defect claim destined for a jury.
The closest the plaintiff came to articulating a semi-specific manufacturing defect claim was an allegation of “material fatigue.” Was there any hint in the case that the materials in the implants at issue were in any way out of spec, or different from the norm? Nope. Rather, the plaintiff “extrapolated from the injuries” that “there must have been a manufacturing defect.” Goodbye TwIqbal. Goodbye whatever is the relevant state law on manufacturing defect. Hello, new-fangled res ipsa loquitur theory, even though the Sumpter court never uses those magic Latin words. Under the Sumpter court’s reasoning, once one claims injury from a product, there’s a manufacturing defect that is immune from a motion to dismiss. (Unless, one supposes, one is in an outlier case where the product was intended to inflict injury. And then, surely, there is another legal claim at hand.) The Sumpter court has defectively manufactured a tort claim that, by all rights, should be dismissed based on well-established, clear SCOTUS precedent.
The only consolation is that, as we have pointed out many times before, manufacturing defect claims are hard to win. The odds are long against the likelihood that the plaintiff will ever demonstrate a true manufacturing defect. Then again, erroneous jury instructions could wreak havoc in favor of even an empty claim, and how can we predict that won’t happen?
Justice Powell once said that history “teaches us tolerance for the human shortcomings and imperfections which are not uniquely of our generation, but of all time.” Tolerance, indeed. Plus, unlike with SCOTUS, the Sumpter court might some day get reviewed by a higher court. And then there is the highest authority of all: the DDL blog ten-worst list at the end of this year.
[Answer to question: William O. Douglas sat on the High Court for 36 years and 211 days. He was confirmed at the age of 40. The judge we clerked for had clerked for Douglas, and could never utter WOD’s name without a growly follow-up along the lines of “…that bastard.” Apparently Douglas, while being brilliant and charismatic, was not always very nice.]