Responding to a rise of "no-injury" theories of liability in individual lawsuits and class actions, Shook, Hardy & Bacon Public Policy Partners Victor Schwartz and Cary Silverman have published the first law review article that brings together several no-injury theories and demonstrates why they should be rejected by courts. These include:
- claims for recovery of speculative emotional harm;
- liability for the estimated costs of medical monitoring following exposure to a potentially harmful substance absent a physical injury;
- class action litigation claiming that a product’s actual value was lower than the purchase price or that the resale value of a product diminished because of an alleged latent defect, even when the product functioned properly for most or all consumers; and
- class actions challenging product labeling or advertising on behalf of all consumers where few, if any, of them were actually misled.
In The Rise of ‘Empty Suit’ Litigation. Where Should Tort Law Draw the Line?, Schwartz and Silverman begin by quoting a prominent plaintiffs’ lawyer. "If there were liability for every physical injury or actual economic harm that occurs in America, I still would be limited in my practice," the plaintiffs' attorney reportedly said. "There are only so many injuries. But if I were allowed to recover damages and attorneys’ fees when there is no injury, my potential return is unlimited.”
Schwartz and Silverman argue strongly against the plaintiffs' lawyer's reasoning. They examine how plaintiffs have attempted to circumvent or alter the traditional "injury" rules and consider the judicial response to such claims. The article finds that while some courts are slowly easing traditional requirements for recovery solely for emotional harm, courts are largely rejecting empty suit litigation. Schwartz and Silverman argue that the civil justice system should be reserved for individuals who have experienced real injuries and actual losses, and they show how courts, government agencies and legislatures can each play a role in discouraging empty suit litigation.