Schwartz: Five Liability-Expanding ‘Submarines’ and How to Torpedo Them
Each year, trial lawyers spend hundreds of millions of dollars advertising their services to potential clients in efforts that are objectionable but “above ground,” according to Shook Public Policy Group Co-Chair Victor Schwartz. In an article for the Washington Legal Foundation, Schwartz said much less is known about their “underwater activities,” or activities he says can be visualized as submarines directed at expanding the liability of corporate America.
In his article titled, “Trial Lawyers’ Liability-Expansion Submarines and How They Might Be Torpedoed,” Schwartz identifies five different “submarine” activities, as well as how the business community can work to stop them.
One example Schwartz gave of a trial lawyer submarine is creating a duty in tort law for manufacturers to market safer products they have in reserve. He pointed to a California intermediate appeals court decision in In re Gilead Tenofovir Cases, in which the plaintiffs were seeking compensation for adverse events associated with their use of a manufacturer’s HIV/AIDS drug. The plaintiffs alleged the manufacturer was negligent because it had discovered a similar drug could deliver the same benefits with a lower risk. The California Court of Appeal agreed with the plaintiffs, “endorsing a new and unprecedented duty in tort law.”
“This decision, if upheld on appeal, can be earthshaking not only for pharmaceutical companies, but for medical device, automobile, and many other manufacturers,” wrote Schwartz. “This is [the] first time tort law has pushed manufacturers to deliver not only a non-defective product, but a potentially safer, different product … this submarine should be blasted out of the deep water.”
