Defense Counsel Journal

Where Are We Headed, Hal? Product Liability in the Next 100 Years

April 29, 2020

Product Liability

William L. Anderson

William L. Anderson

William Anderson is a partner with Crowell & Moring LLP in Washington, DC in the mass torts and product liability group. His matters typically involve the intersection of science and the law, and he has litigated birth defect, environmental, crop protection, and other matters involving national dockets. Bill is the current Chair of the Product Liability Committee and IADC member since 2015. Bill is not a reckless skier; he just falls a lot.

I suspect about half of the readers don’t even get the reference to Hal anymore. When 2001: A Space Odyssey came out in 1968, the year 2001 was the far distant future, and the moon landing had not even occurred. The movie blew our minds with its depiction of a sentient computer (friendly Hal) on a space flight to Jupiter who ended up taking over the ship. The ship went where Hal wanted it to go.

At the beginning of this IADC year, the Product Liability Committee was asked to assume responsibility for one full volume of the Defense Counsel Journal. We picked April and set about soliciting articles. Curtis Ott, Vice-Chair of Journals, and Jaimme Collins, Vice-Chair of Special Projects, have jointly led the effort. As an organizing theme, we decided to play off the 100th Anniversary of the IADC.  But instead of looking backwards, we decided to look forwards. Where are we going, Hal? And who is driving this ship?

The collection of articles in this edition is superb. We are grateful to the distinguished authors who stepped up and contributed articles on several important directions of our practice area. The “100 year” target in the title is, of course, out of reach, but perhaps we can capture the next two decades at least. The companion introduction by Defense Counsel Journal Editor Kenneth Meyer describes the approach of each article – take a look to see if something catches your eye.

In addition to the key articles, I asked a number of the Committee’s most distinguished and long-standing practitioners to predict some trends in the direction of product liability litigation. These short pieces are pure opinion and thus do not look like your traditional law review articles. But we thought that the views of these contributors, including several past chairs of the Product Liability Committee, would provide valuable insight for our members into the areas of law and other developments we can expect to dominate our practices in at least the near future. My thanks to each of these authors who stepped up on short notice and contributed to this edition.

In the spirit of leading from in front, I suppose, let me start with my own thoughts from 30-plus years of product liability work. Prepare for the following, space travelers, Hal is in charge.

The split between federal and state courts will get worse. We all would prefer as defendants to be in federal court. One reason is the applicable law – Daubert rulings in Louisiana have produced four consecutive rejections in federal courts of the infamous any exposure causation approached used by plaintiff experts, whereas the state courts have let the experts testify. Removal in such a Louisiana exposure-based litigation is thus nearly case-dispositive. Judges, again speaking very generally, have more resources in federal court, tend to examine plaintiffs’ case and experts more vigorously, and are not subject to local elections and campaign funding.

Expect the split between federal and state outcomes to become even more dramatic. We should not underestimate the impact of President Trump and Senator McConnell’s remaking of the federal judiciary. Most of our clients would cheer this development, as the tort/product litigation and jury verdicts are clearly spinning out of control and cry out for judicial intervention. But the effect of the new, more conservative federal judiciary will be plaintiffs’ increasing efforts to control state judiciaries, e.g., by pumping money into judicial elections and straining to file/keep cases in favorable state courts. While the President is remaking the federal judiciary, it was not that long ago that contributions helped put three new Democratic justices on the Pennsylvania Supreme Court, who then promptly voted, arguably, to wipe out one of the best any exposure rulings in the country.¹1See Rost v. Ford Motor Co.,151 A.3d 1032 (Pa. 2016), disagreeing with and limiting Betz v. Pneumo-Abex, LLC, 44 A.3d 27, 49 (Pa. 2012).  Brush up on your federal jurisdiction and removal bona fides, because you are going to need them.

Attacks on our experts and science will expand dramatically and in force. I have recently seen a dramatic escalation in the plaintiff bar’s attempts to destroy defense experts and science. Michael Klatt, Molly Jones, and I presented on this topic at the mid-year meeting, and it is hard to see any forces in play that can slow or stop this train. Experts who once willingly brought their independence and reputations to the court to defend the science are now standing down because they cannot afford, or don’t want, to go through the meat grinder of attacks on their ethics and credibility that follow. As defense counsel, it is becoming increasingly difficult to locate willing experts and then protect them from destruction. Likewise, journals that publish articles favorable to the defense side are under attack and being threatened with litigation or a public blistering.  The entire “ghostwriting” episode in the recent Monsanto glyphosate trials is a dramatic picture of what we will see in spades over the next few years.

The reptile theory will expand its influence and impact unless we figure out how to counter it. The reptile theory – the subject of several IADC presentations over the years – posits that jurors (or their reptilian brains) will respond to fear, and the plaintiff lawyer’s job is to make jurors afraid of what defendant supposedly did. It works. And it is spreading today beyond just corporate witnesses to defense experts. I attribute at least part of the exploding dollar values of recent verdicts to the spread of the reptile approach. This is one problematic direction we should be able to solve – we have a wealth of great trial lawyers and jury consultants at the IADC’s disposal. Let’s tap that resource and arm the defense bar with a jury-friendly rebuttal, based on fairness and reasonableness, not on fear. Jurors are not bad people, but we need to give them a reason to feel good about saying “no” to the plaintiff’s attorneys.

Defendants are losing the PR war. If you ask me who Hal is, I would respond that the plaintiff’s bar and their allies in the NGO, academic, and political worlds serve as our Hal today – they are driving the product liability litigation ship. Nearly everything corporations and defendants do is in response to some new initiative to take down a product, multiply verdict dollars exponentially, and declare almost anything a carcinogen. The public relations battle against products and their makers/sellers is intense, and the corporate side is fighting with one hand tied behind its back. No single corporation can take on some of these issues without being vilified in the media for the effort. Even participation in regulatory and scientific review processes is today portrayed by plaintiff trial lawyers as attempts to manipulate the science.

I have had a great career and have enjoyed the work I have done over the years. I have also (like all of you) had many successes in both federal and state courts that I am proud of and believe helped preserve true science. I always felt that my experts’ testimony and any positions I took with a court had to be rooted in the science and manifestly based on truth, not speculation – otherwise, we lose. But as I get near my retirement years, the thing that I find most discouraging is the way in which the “other side” has so successfully resorted to fear and poor science to turn large chunks of the population against corporations, products, and even the scientific world itself – exactly what many of us have worked so hard to stop. Today it is the atmosphere, not the product, that is toxic. A significant portion of company defense costs in the near future must be directed to countering this effort and coming up with an effective way to respond to the destructive public messaging.

*  *  *

I realize that these are not the most optimistic of predictions. My thoughts above are, in fact, more in the nature of a warning – as I near my departure from your world, I don’t like what I see. The judicial system has made great strides under Daubert and tort reform (in part thanks to Mark Behrens and his colleagues on the Civil Justice Committee) in many states. And the federal judiciary makeover, regardless of our individual political views these days, will help the defense bar.  But the overall picture looks to me like more good products destroyed and more bankruptcies. 

So, Hal is largely in control, and I’m not sure how to stop him. But isn’t that why the IADC exists? I don’t think we can continue simply to react to plaintiff initiatives, present our CLEs, and go back to practice. We are still on the right side of the science and the right side of the law – but we need a concerted game plan for managing the direction of the ship.

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