In my previous posting, I attached the decision by the Rhode Island Supreme Court rejecting a public nuisance claim against lead pigment manufacturers. As I worked on that appeal, certain aspects of that action struck me as similar to those presented in another appeal, pending in the Maine SJC, in which we represent a defendant forklift manufacturer, Brown v. Crown Equipment, Inc.
In the lead pigment case, the Rhode Island Attorney General filed an action against various manufacturers of lead pigment, seeking to have them abate lead in paint throughout all housing units throughout the state. Each manufacturer had stopped manufacturing its products at least 50 years ago. The state could not pursue a product liability case against the manufacturers, because it could not meet the elements of that cause of action. There are also multiple Rhode Island statutes dealing with lead abatement, but the AG thought them insufficient. So the state sued under public nuisance, seeking to expand the common law. In sum, this was a case against a manufacturer, seeking to expand the common law to go beyond existing product liability rules.
Brown involves a similar effort to impose liability on a manufacturer decades after it sold a legal, non-defective product, having done nothing wrong at the time it launched the product into commerce and gave up control.
In Brown, the defendant manufactured a forklift that was ultimately sold to a warehouse owner. An employee of the warehouse owner was killed operating the forklift. The jury, in federal court, found that the forkift was not defective. Nor did the manufacturer violate any duty to warn at the time it launched the product into the stream of commerce. (There were specific questions for the jury on these points on the verdict form.) But the magistrate concluded that Maine would adopt a theory of liability proposed in the Third Restatement of Torts, pursuant to which manufacturers and distributors can be liable, not for producing a defective product (which under product liability law, includes a failure to warn of risks foreseeable at the time of sale), but rather for failing to warn about hazards, not foreseeable, and not created by the manufacturer, arising after the product leaves its hands, if the manufacturer learned or “should have” learned about the hazard, and the jury determines that it would not have been too burdensome to issue a post-sale warning. (In Brown, the new hazard was environmental: after the sale, over time, more warehouse owners began reconfiguring their shelves to save space, which increased the chances of a horizontal intrusion. After study, Crown responded in its next re-design of its forklift; included warnings in its owners manual (found in the plaintiff’s employer’s possession); created an after-market kit; and sent a notice about the same to its thousands of direct purchasers.) The plaintiff successfully argued to the jury that Crown should also have directly communicated to the plaintiff’s employer about the risk, in addition to what was stated in the manual. On appeal to the First Circuit, the Court of Appeals certified a question to the SJC as to whether it recognizes this new post-sale duty to warn, outside Maine’s statutory product liability law. Here’s a link to the First Circuit’s certification order, which summarizes the facts and identifies the question, focusing on non-defective products. http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=06-2705.01A. Oral argument has taken place, and we are awaiting the SJC’s answer.
As I noted, the similarities between the Rhode Island and Maine actions are striking, in their efforts to expand the common law to circumvent existing product liability rules, in order to hold a manufacturer liable even though it satisfied its existing legal obligations when it launched a non-defective product into the stream of commerce. In the lead pigment case, the plaintiff sought to impose liability beyond existing product liability rules by expanding public nuisance law. In Brown, the plaintiff is arguing that common law “negligence” should include an additional nonfeasance post-sale duty to warn. In both instances, because there is no time limit on such a cause of action, a jury might hold a manufacturer liable decades after it sold its product. In both Rhode Island and Maine, the plaintiff argued that general instructions to a jury would avoid unfairness (e.g. with nuisance, it would be up to the jury to determine whether the public “ought to bear” the burden; with the duty to warn of newly developed post-sale external hazards, the Third Restatement suggests four “should have” factors that the jury should consider, assessing issues such as how difficult it would be to find the indirect purchaser, how serious the new hazard is, and so on).
Here’s some of the reasoning in the Rhode Island decision I find instructive.
The Rhode Island Supreme Court noted that the role of the court is not to create new causes of action (see pages 5 & 36). To do so, would be to substitute the court’s will for that of a body democratically elected by the citizens of the state. Id. This was particularly true, the Court said, given (a) existing product liability law to cover manufacturer liability; and (b) the fact that the Rhode Island Legislature had enacted lead abatement statutes that did not impose such liability on manufacturers. (See page 42.) The Court ruled that it would not expand the common law to avoid the concrete limitations contained in the existing cause of action. (See, e.g., id. at 42-43 noting that the Rhode Island statutes reflected the General Assembly’s chosen response and policy.)
These principles should have even more applicability in the Maine context, because in Maine, unlike in Rhode Island, product liability law is embodied in statute. Longstanding Maine case law also observes that, in enacting the product liability statute, the Maine Legislature intended to limit the duty to warn to the date a manufacturer sells its product. Hence, even more than in Rhode Island, the creation of a new common law duty to warn would disrupt the policy and balance of economic considerations that the Legislature adopted when it enacted the products liability statute. (See the Rhode Island decision at p. 22, talking about the Court’s disinclination to abandon carefully developed and settled principles developed over the years; p. 36, discussing how the expansion proposed by the plaintiff would lead to an extension never intended).
In the Rhode Island oral argument, counsel observed that the state would be an outlier should it adopt the new liability theory. If Rhode Island had accepted the AG’s public nuisance theory, it would basically have been the first supreme court to do so (Wisconsin has a version, but, among other things, it requires proof of fault, unlike the version on which the Rhode Island jury was instructed). While there was a lot of to and fro-ing in the Brown briefing over whether any other jurisdiction has adopted the Third Restatement’s new duty to warn, if you really parse the case law, no other jurisdiction has recognized a manufacturer’s liability to an indirect purchaser for a non-defective product, based on a duty to warn about an external hazard that arose post-sale and without fault by the manufacturer. (I will leave for another day a discussion about the differences between the Second and Third Restatements, including the candid admissions by the authors’ of the latter not just to summarize the state of the law, but fix what they deemed should be changed in existing law.) The Rhode Island Supreme Court’s comments on the need to avoid radical changes in the common law suggests that a relevant factor for a court should be whether it will be standing alone, or if others are marching on the same path. (See the Rhode Island decision, for example, at page 21; see also id., p. 43, noting that the Rhode Island Assembly’s framework, without imposition of liability on manufacturers, was “wholly consistent” with the common law of other jurisdictions.)
Finally, the discussion about causation in the Rhode Island decision is also telling. The Court notes that causation is a basic requirement in the law of torts generally, and that even under strict liability, a plaintiff must show a causal connection between the injury and a product defect. (p. 30). The lack of any such nexus in the proposed new duty to warn in Maine – there was no defect; rather, it’s a nonfeasance duty to warn about what other people have (unforeseeably) done – underscores the qualitative leap that creation of such a duty would have, as opposed to a natural and limited expansion of existing law. (See, e.g., id.at 31, discussing how “basic fairness” dictates that the defendant must have caused the problem to be held liable.)
In sum, the Rhode Island Supreme Court ruled that it was not its role to create a new cause of action (see e.g., p. 38), outside tradition and not recognized in a statute (p. 39), to circumvent product liability law, with “its own well-defined structure, which is designed specifically to hold manufacturers liable for harmful products that the manufacturers have caused to enter the stream of commerce.” (p. 40). The new duty to warn proposed by the plaintiff in Brown, without a time limit, different from longstanding product liability law, and limited only by four very general and subjective factors, could, as the Rhode Island Court described the proposed new public nuisance law, “become a monster that would devour in one gulp the entire law of tort.” (p. 41.) As the Brown facts show, a manufacturer could do everything right – create a non-defective product, comply with all duties to warn about any foreseeable risks – and still be held liable at some unknown point down the road, many years later, for not having kept sufficiently apprised, or not having taken sufficient steps to warn about external, unforeseeable new uses or hazards.
These examples are only a few of the many ongoing assaults on existing product liability law. The Rhode Island decision suggests that a court should be reluctant to take it upon itself to expand that law, when the change requested would be great; there is no large trend in that direction elsewhere; and the state legislature has spoken in that general area, arriving at a different result.