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An Introduction to Tort Reform for Liberals

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I�m moderately surprised to be blogging here, but pleased that Walter extended the invitation. The invitation surprised me because on most matters, my political views would be classified as substantially to the left of the Manhattan Institute�s. Indeed, my primary plan for the week is to talk about what I call �tort reform for liberals.�

Some background to, perhaps, justify my claim to liberalism: I took a semester off from college to work full-time on Paul Wellstone�s first campaign for the U.S. Senate. I attended college at Macalester College in St. Paul, happily residing in one of the most Democratic precincts in the country, and I now live happily in Northampton, Massachusetts, in another of the most Democratic areas in the country. I spent a number of years raising money for progressive groups and candidates in Minnesota and across the country. Sakes alive, I even supported John Edwards�s primary campaign and then John Kerry�s general election campaign. I am a progressive Democrat.

After clerking in a federal district court, though, I was a litigator at Williams & Connolly LLP in Washington, D.C., with much of my time spent as defense counsel in pharmaceutical mass tort litigation. (In the interest of disclosure (and context), I continue in a consulting role for an average of 10 to 15 hours per month for pharmaceutical companies involved in mass tort litigation. My comments here and elsewhere may or may not reflect my clients� views; they have no input into them.) Two years ago, I joined the faculty of Western New England College School of Law.

In various trials, I saw general practitioner physicians -- who had never been nearer the FDA than visiting the International Spy Museum in Washington, D.C. -- permitted to testify about what they believed companies should have submitted to the FDA. I saw cases go to the jury on the flimsiest of evidence of specific causation, delivered by experts who shouldn�t have survived even the laxest of Daubert evaluations, all of it contradicting the contemporaneous medical records and factual testimony of most everyone around. And I saw experts opining contrary to every credible theory relating to general or specific causation, but still being permitted to testify before the jury. To put it generally, I saw from many (certainly not all) judges an utter indifference to science. Daubert was a checklist to mutter before ruling, not something to consider carefully.

In short, I saw science being misused and abused. And those are the sorts of cases that still make me twitch -- more than the more-publicized high-damages cases -- cases where one party or another simply has no credible scientific or medical basis for their case.

I�m the lone non-scientist in my family. My father spent 20-plus years with Phillips Petroleum and nearly as long with 3M as an electrochemist; he is a named inventor on 52 patents. My mother worked for 3M as a chemical engineer. I am the sole non-Ph.D. of three children, with my sister a patent attorney with a plant genetics degree, and my brother a process engineer with a physics degree. In other words, respect for and admiration of science has been a core part of my upbringing, even though I didn�t end up in science (much, I suspect, to the confusion of my parents).

It is the problems at the intersection of law and science that have taken much of my attention in the last few years, and it is improving the use of science in law that I hope to discuss this week.

Some of the ideas I have in mind to discuss this week already exist in some places; some are frankly unrealistic but still worth discussing; and some are rough enough that I�m not even sure I support them. I�m not certain, actually, that I�m fully on board with any of them. I hope placing them here will trigger discussion.

Why �tort reform for liberals,� though? Because the underlying concept � increasing respect for science -- ties into a more general theme that I think could have real resonance for progressives.

On a number of issues, the controlling policymakers today have acted (in my view) contrary to solid science and contrary to the consensus of nonpartisan scientists. These ideas -- or related ones -- can be part of a science-based platform on many issues, primarily in policy, but also in litigation. If manipulating science is wrong in �pure� policy matters, it�s wrong in litigation.

Further, these proposals -- if I'm right -- are relatively precisely focused. Their impact on good cases should be minimal, instead targeting arguments or testimony that shouldn't exist in the first place. They're also not solely aimed at plaintiffs' cases.

With that too-long introduction, I look forward to the week. If you want to see a little more about me, I write the TortsProf blog about tort law generally, and MassTort.org, which mostly focuses on amusement park safety. You can contact me at wchilds AT law DOT wnec DOT edu.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.