Amicus Curiae Brief — Smith & Wesson Brands, Inc., et al., Petitioners v. Estados Unidos Mexicanos
Supreme Court briefMay 22, 2024
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Nos. 23-1141
In the Supreme Court of the United States
______________________
SMITH & WESSON BRANDS INC., ET AL.,
v.
Petitioners,
ESTADOS UNIDOS MEXICANOS,
Respondent.
______________________
BRIEF OF AMICI CURIAE
NATIONAL ASSOCIATION OF
MANUFACTURERS AND
AMERICAN TORT REFORM ASSOCIATION
IN SUPPORT OF PETITIONERS
______________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the First Circuit
______________________
Philip S. Goldberg
Counsel of Record
Cary Silverman
SHOOK, HARDY & BACON L.L.P.
1800 K Street, N.W., Suite 1000
Washington, D.C. 20006
(202) 783-8400
pgoldberg@shb.com
May 22, 2024
[Additional Counsel Listed on Inside Cover]
Erica Klenicki
Michael A. Tilghman II
THE NAM LEGAL CENTER
733 10th Street, N.W., Suite 700
Washington, D.C. 20001
H. Sherman Joyce
Lauren Sheets Jarrell
AMERICAN TORT REFORM ASSOCIATION
1101 Connecticut Ave., N.W., Suite 400
Washington, DC 20036
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND
SUMMARY OF ARGUMENT ............................... 2
ARGUMENT ............................................................... 5
I.
THE COURT SHOULD GRANT THE
PETITION TO REAFFIRM THAT
FORESEEABILITY IS NOT A
SUBSTITUTE FOR PROXIMATE
CAUSATION ................................................... 5
II. THIS PETITION IS EMBLEMATIC OF
NUMEROUS LAWSUITS SEEKING TO
IMPOSE INDUSTRY-WIDE LIABILITY
FOR COSTS ASSOCIATED WITH
MANUFACTURING AND SELLING
LAWFUL PRODUCTS ................................. 10
III. MANAGING PUBLIC RISKS
ASSOCIATED WITH INHERENTLY
HARMFUL PRODUCTS SHOULD
REMAIN A REGULATORY, NOT
LITIGATION MATTER ................................ 17
CONCLUSION .......................................................... 20
ii
TABLE OF AUTHORITIES
Cases
Page
Alston v. Advanced Brands & Importing Co.,
494 F.3d 562 (6th Cir. 2007) ................................. 3
Bank of Am. Corp. v. City of Miami, Fla.,
581 U.S. 189 (2017)................................................ 5
Bostic v. Georgia Pac. Corp.,
439 S.W.3d 332 (Tex. 2014) ................................. 14
Case v. Fibreboard Corp.,
743 P.2d 1062 (Okla. 1987) ................................. 14
City of Chicago v. Am. Cyanamid Co.,
No. 02 CH 16212, 2003 WL 23315567
(Ill. Cir. Ct. Oct. 7, 2003) ..................................... 14
City of Chicago v. Beretta U.S.A. Corp.,
821 N.E.2d 1099 (Ill. 2004).................................... 8
City of Cincinnati v. Beretta U.S.A. Corp.,
768 N.E.2d 1136 (Ohio 2002) ................................ 8
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) ............................. 13, 18
City & County of Honolulu v. Sunoco LP,
537 P.3d 1173 (Haw. 2023), petition for cert.
pending (Nos. 23-947, 23-952) ............................. 13
City of Philadelphia v. Beretta U.S.A. Corp.,
277 F.3d 415 (3rd Cir. 2002) ................................. 3
iii
City of St. Louis v. Benjamin Moore & Co.,
226 S.W.3d 110 (Mo. 2007) ............................ 14, 15
Dillon v. Legg, 441 P.2d 912 (Cal. 1968) .................... 7
Estados Unidos Mexicanos v. Smith & Wesson
Brands, Inc., 91 F.4th 511 (1st Cir. 2024) ........ 2, 3
Exxon Co. v. SOFEC, Inc., 517 U.S. 830 (1996) ......... 7
Holmes v. Securities Investor Prot. Corp.,
503 U.S. 258 (1992).................................... 3, 5, 6, 7
Huck v. Wyeth, Inc.,
850 N.W.2d 353 (Iowa 2014) ............................... 15
In re Darvocet, Darvon, & Propoxyphene Prods.
Liab. Litig., 756 F.3d 917 (6th Cir. 2014) .......... 15
In re Lead Paint Litig.,
924 A.2d 484 (N.J. 2007) ............................... 11, 12
Matter of New York State Silicone Breast Implant
Litig., 166 Misc.2d 85 (N.Y. Sup. Ct. 1995) ........ 15
McNair v. Johnson & Johnson,
818 S.E.2d 852 (W. Va. 2018) .............................. 15
Palsgraf v Long Is. R.R. Co.,
162 N.E. 99 (N.Y. 1928) ......................................... 6
People v. Atlantic Richfield Co.,
No. 100CV788657, 2014 WL 1385823
(Cal. Super. Ct. Mar. 26, 2014) .......................... 16
iv
People v. ConAgra Grocery Prods. Co.,
17 Cal.App.5th 51 (2017), cert. denied,
138 S. Ct. 377 (2018)............................................ 15
Pelman v. McDonald's Corp.,
237 F. Supp.2d 512 (S.D.N.Y. 2003) ............... 4, 15
Petition of Kinsman Transit Co.,
338 F.2d 708 (2d Cir. 1964) ................................... 7
Philadelphia v. Beretta U.S.A. Corp.,
277 F.3d 415 (3d Cir. 2002) ................................... 3
Rhode Island v. Lead Indus. Ass’n, Inc.,
951 A.2d 428 (R.I. 2008) ...................................... 11
S.F. v Archer Daniels Midland Co.,
594 Fed. Appx. 11 (2d Cir. 2014)......................... 15
Santiago v. Sherwin Williams Co.,
3 F.3d 546 (1st Cir. 1993) .................................... 10
Spitzer v. Sturm, Ruger & Co.,
309 A.D.2d 91 (N.Y. App. Div. 2003) .................. 16
Stahlecker v. Ford Motor Co.,
667 N.W.2d 244 (Neb. 2003) .................................. 9
State ex rel. Hunter v. Johnson & Johnson,
499 P.3d 719 (Okla. 2021) ................................... 12
Steamfitters Local Union No. 420 Welfare
Fund v. Phillip Morris, Inc.,
171 F.3d 912 (3d Cir. 1999) ................................... 6
Tioga Pub. Sch. Dist. v. U.S. Gypsum Co.,
984 F.2d 915 (8th Cir. 1993) .............................. 16
v
Thing v. La Chusa,
771 P.2d 814 (Cal. 1989) ........................................ 7
West Virginia v. McKesson Corp.,
No. 16-cv-01772, 2016 WL 843443
(S.D. W. Va. Feb. 23, 2016) ................................. 12
Statutes
Protection of Lawful Commerce in Arms
Act (PLCAA), 15 U.S.C. § 7903 ......................... 5, 8
Other Authorities
David Brunnstrom, Debris from North Korean
Missile in Ukraine Could Expose Procurement Networks, Reuters, Feb. 24, 2024,
https://www.reuters.com/world/debris-northkorean-missile-ukraine-could-exposeprocurement-networks-2024-02-22/ .................... 16
Heather Chen & Kathleen Magramo, Finance
Worker Pays Out $25 Million After Video
Call with Deepfake ‘Chief Financial Officer’,
CNN, Feb. 4, 2024, https://www.cnn.com/
2024/02/04/asia/deepfake-cfo-scam-hongkong-intl-hnk/index.html .................................... 17
David A. Dana, Public Nuisance Law When
Politics Fails, 83 Ohio St. L.J. 61 (2022)............. 19
John L. Diamond, Cases and Materials on
Torts (2001) ............................................................ 9
Dan B. Dobbs, The Law of Torts § 180 (2001)............ 5
vi
Emily Flitter & Stacy Cowley, Voice Deepfakes
Are Coming for Your Bank Balance,
N.Y. Times, Aug. 30, 2023, https://
www.nytimes.com/2023/08/30/business/
voice-deepfakes-bank-scams.html....................... 17
Establishing Accountability for Climate Damages: Lessons from Tobacco Control, Summary
of the Workshop on Climate Accountability,
Public Opinion, and Legal Strategies, Union
of Concerned Scientists & Climate Accountability Inst. (Oct. 2012).......................................... 18
Rachel Graf, Ky. AG Hires Motley Rice, Others
in Opioid Fight, Law360, Sept. 22, 2017,
https://www.law360.com/articles/966930 ........... 12
Amanda Hernandez, Are Ski Mask Bans a
Crime-Fighting Solution? Some Cities Say
Yes, Stateline, Jan. 10, 2024, https://
stateline.org/2024/01/10/are-ski-mask-bansa-crime-fighting-solution-some-cities-say-yes/ ... 17
James A. Henderson, Jr. & Aaron D. Twerski,
Closing the American Products Liability
Frontier: The Rejection of Liability Without
Defect, 66 N.Y.U. L. Rev. 1266 (1991) ................. 18
Leslie Kendrick, The Perils and Promise of Public Nuisance, 132 Yale L.J. 702 (2023) ................ 19
Thomas W. Merrill, The New Public Nuisance:
Illegitimate and Dysfunctional,
132 Yale L.J. Forum 985 (2023) .......................... 19
vii
Max Mitchell, Can Opiate Litigation Ever Be
the New Mass Tort?, Legal Intelligencer,
Mar. 31, 2017 ....................................................... 12
David G. Owen, Figuring Foreseeability,
44 Wake Forest L. Rev. 1277 (2009) ..................... 6
Prosser & Keeton on Torts (5th ed. 1984) .................. 5
Victor E. Schwartz et al., Can Governments
Impose a New Tort Duty to Prevent External
Risks? The “No Fault” Theories Behind Today’s High-Stakes Government Recoupment
Suits, 44 Wake Forest L. Rev. 923 (2009)........... 11
Statista, Number of Murder Victims in the United States in 2022, by Weapon Used,
https://www.statista.com/statistics/195325/
murder-victims-in-the-us-by-weapon-used/
(last visited May 22, 2024) .................................. 17
Statista, Number of Robberies in the United
States in 2022, by Weapon Used,
https://www.statista.com/statistics/251914/
number-of-robberies-in-the-us-by-weapon/
(last visited May 22, 2024) .................................. 17
Denise Winterman, Casio F-91W: The Strangely
Ubiquitous Watch, BBC News, Apr. 26, 2011,
https://www.bbc.com/news/magazine13194733 ......................................................... 16-17
1
INTEREST OF AMICI CURIAE1
Amici are the National Association of Manufacturers (NAM) and American Tort Reform Association
(ATRA). They and their members are concerned with
attempts to subject industries that manufacture lawful products to unprincipled liability for costs of societal problems regardless of whether any of their conduct proximately caused those alleged harms.
The NAM is the largest manufacturing association in the United States, representing small and
large manufacturers in all 50 states and every industrial sector. Manufacturing employs nearly 13 million men and women, contributes $2.89 trillion to the
United States economy annually, has the largest
economic impact of any major sector, and accounts
for over half of all private-sector research and development in the nation. The NAM is the voice of the
manufacturing community and leading advocate for
a policy agenda and liability laws that help manufacturers compete in the global economy and create jobs
across the United States.
ATRA is a broad-based coalition of businesses,
corporations, municipalities, associations, and professional firms that have pooled their resources to
promote reform of the civil justice system with the
goal of ensuring fairness, balance, and predictability
in civil litigation. For more than three decades,
1 Pursuant to Rule 37.6, counsel for amici affirm this brief was
not authored in whole or in part by counsel for any party and
that no person or entity, other than amici curiae, their members, or their counsel made a monetary contribution to the
preparation or submission of the brief. Counsel of record for all
parties received timely notice of the intention to file this brief.
2
ATRA has filed amicus briefs in cases involving important liability issues.
INTRODUCTION AND
SUMMARY OF ARGUMENT
In the Protection of Lawful Commerce in Arms
Act (PLCAA), Congress requires a showing that a
firearms manufacturer is the “proximate cause” of
harm for which a plaintiff seeks relief in order for the
plaintiff to proceed on the claim. This requirement
incorporates from tort law traditional notions of
proximate cause that have served to protect manufacturers engaged in lawful commerce from unprincipled liability over their products. Thus, although
this case arises in the context of firearms, the First
Circuit’s erroneous holding on proximate causation
has implications for the manufacture and sale of
many lawful products that have inherent risks related to their use and misuse. Indeed, comparable lawsuits that have sought to force manufacturers and
sellers of lawful products—such as lead paint, prescription medicines, and beverages in plastic bottles—to pay for state and local government efforts to
deal with risks consumers created with the lawfully
sold products (lead poisoning, drug abuse and litter).
For at least three reasons, the Court should grant
the petition to correct the First Circuit’s decision.
First, the court found that foreseeability alone could
satisfy proximate cause, creating a circuit split. See
Estados Unidos Mexicanos v. Smith & Wesson
Brands, Inc., 91 F.4th 511, 534 (1st Cir. 2024). In
2002, an American government brought similar allegations as those here, and the Third Circuit dismissed the case. It held that proximate causation requires “a direct relation between the injury asserted
3
and the injurious conduct alleged,” and the government did not establish proximate cause between selling a lawful product and the public safety concerns
over how some consumers used the product. City of
Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415,
423 (3d Cir. 2002) (quoting Holmes v. Securities Investor Prot. Corp., 503 U.S. 258, 268-69 (1992)).
Second, the court did not require Respondent to
identify any specific sales of the Petitioners’ products
that foreseeably caused the alleged harms. See Estados Unidos Mexicanos, 91 F.4th at 532 (“Of course,
the complaint does not allege defendants’ awareness
of any particular unlawful sale.”). Rather, Respondent pleaded foreseeability in aggregated generalities,
arguing that engaging in commerce of a product that
causes known harms satisfies proximate cause when
these harms occur—regardless of how attenuated
from the manufacturers and sellers. And third, the
complaint seeks to impose joint and several liability
on an industry for a broad range of expenses rather
that than establish that a manufacturer’s conduct
caused any of the specific harms alleged.
American liability law, when grounded in proximate causation, does not impose blame or obligations
for product-based societal harms on industries that
put those lawful products into the stream of commerce. It may be foreseeable, for example, that underage individuals will purchase alcoholic beverages,
causing harm to themselves, their parents, or others,
but manufacturers and sellers of wine, beer and
spirts are not liable for these harms. See, e.g., Alston
v. Advanced Brands & Importing Co., 494 F.3d 562,
565 (6th Cir. 2007). Similarly, it is foreseeable that
some people will become obese or develop diabetes
4
from certain foods, but companies that sell those
foods are not liable for these conditions. Pelman v.
McDonald's Corp., 237 F. Supp.2d 512, 538 (S.D.N.Y.
2003). Otherwise, there would be no just stopping
point. Many social issues related to products may be
foreseeable in a general, aggregated sense. But,
there are no specific incidents of harm that are proximately caused by the manufacturers or sellers of
those products. In fact, these harms are often caused
by acts—including unlawful acts—of third parties.
The First Circuit’s formulation of proximate causation cannot stand; it violates the basic tenets of the
American civil justice system. Rather than subject
defendants to liability for harm they actually caused,
which is the essence of American tort law, these lawsuits will be used to generate revenue for local and
state governments, regardless of fault, and overtake
federal or state regulatory regimes that take considerable care to manage public risks associated with
lawful economic activity. Here, a foreign country is
using this litigation to do both. Denying this petition,
therefore, could invite foreign governments to sue
American companies for a wide-variety of social conditions. Such lawsuits could destabilize the American
economy and generate lawfare designed to hinder the
competitiveness of American manufacturers. This
case could also inspire new speculative domestic lawsuits against manufacturers of lawful products.
For these reasons, as discussed in detail below,
amici urge the Court to grant the Petition and hold
that proximate cause cannot be satisfied here by the
acts of manufacturing, selling, and marketing lawful
products, including products with known, foreseeable
risks. There is no doubt that gun violence, just like
5
lead poisoning, litter, and drunk driving, are critical
public health and safety matters. But, these facts
alone should not give rise to deep pocket jurisprudence against market participants that did not proximately cause the harms alleged.
ARGUMENT
I. THE COURT SHOULD GRANT THE PETITION TO REAFFIRM THAT FORESEEABILITY IS NOT A SUBSTITUTE FOR PROXIMATE CAUSATION
Proximate causation is “fundamental” to American tort law and “appl[ies] in any kind of case,” Dan
B. Dobbs, The Law of Torts § 180, at 443 n.2 (2001),
including this one where liability centers on whether
a legal violation is the “proximate cause of the harm
for which relief is sought,” 15 U.S.C. § 7903(5)(A)(iii).
The purpose of requiring a showing of proximate
cause is to “limit liability even where the fact of causation is clearly established,” including where manufacturers put products into the stream of commerce
that can cause harm, but the harms are not proximately caused by the manufacturers. Prosser &
Keeton on Torts 273 (5th ed. 1984). There must be a
“direct relation between the injury asserted and the
injurious conduct alleged.” Holmes, 503 U.S. at 26869. The specific injury the plaintiff sustained must
be the type of injury that a reasonable person would
see as a likely result of specific acts of misconduct.
As this Court has held, “foreseeability alone does
not ensure the close connection that proximate cause
requires.” Bank of Am. Corp. v. City of Miami, Fla.,
581 U.S. 189, 202 (2017). Foreseeability is a necessary, but not sufficient element of proximate cause.
6
Conduct “cannot meaningfully be viewed as ‘wrong’ if
the actor could not possibly have contemplated that
the action might produce the harm.” David G. Owen,
Figuring Foreseeability, 44 Wake Forest L. Rev.
1277, 1277-78 (2009). There are some harms that
may flow downstream from a defendant’s acts, but
are too remote from these acts to satisfy proximate
causation. See Steamfitters Local Union No. 420 Welfare Fund v. Phillip Morris, Inc., 171 F.3d 912, 921
(3d Cir. 1999) (recognizing “an injury that is too remote from its causal agent fails to satisfy tort law’s
proximate cause requirement”); see also Holmes, 503
U.S. at 268-69 (discussing the remoteness doctrine).
Consider what is probably the most famous tort
case, Palsgraf v. Long Island R.R., in which Judge
Cardozo found that a railroad was not liable for an
injury that occurred as a result of a sequence of
events that began with a railroad employee pushing
a passenger carrying a small package into a departing train., 162 N.E. 99, 99 (N.Y. 1928). It may have
been foreseeable that the employee’s action could result in the pushed passenger falling and experiencing an injury or the package dropping, resulting in
property damage. But the plaintiff’s injury—
triggered by a fireworks explosion from the dropped
package that ended in a weighing scale tipping over
and hitting a passenger far down the platform—was
simply too many steps removed from the employee’s
conduct for the railroad to be legally responsible for
that person’s harm. Whether viewed as a decision
rooted in duty or proximate causation, foreseeability
that some harm will be caused is not sufficient to establish proximate cause for all downstream injuries.
The direct relationship between the alleged misconduct and specific harms asserted was missing.
7
Indeed, the California Supreme Court has recognized the legal predicament of over-relying on foreseeability to justify liability, albeit under the element
of duty. See Dillon v. Legg, 441 P.2d 912 (Cal. 1968)
(allowing liability for reasonably foreseeable emotional harm). After foreseeability ceased to provide
any meaningful bounds to liability, the court restrained its expansive doctrine, famously observing
that “there are clear judicial days on which a court
can foresee forever and thus determine liability but
none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury.” Thing v. La Chusa, 771 P.2d
814, 830 (Cal. 1989). Applying a “pure foreseeability”
test in such cases, the court continued, had failed to
appreciate “the importance of avoiding the limitless
exposure to liability.” Id. at 821. In such instances,
“foreseeability” was “not a realistic indicator of potential liability” and did “not afford a rational limitation on recovery.” Id. at 826.
In cases such as the one here, proximate cause
provides this “necessary limitation on liability.” Exxon Co. v. SOFEC, Inc., 517 U.S. 830, 838 (1996).
Without the constraint of proximate cause, tort law
would “produce extreme results,” because “[i]n a
philosophical sense, the consequences of an act go
forward to eternity, and the causes of an event go
back to the dawn of human events, and beyond.” Id.
(quoting Prosser and Keeton on the Law of Torts, supra, at 264). “Somewhere a point will be reached
when courts will agree that the link has become too
tenuous.” Id. (quoting Petition of Kinsman Transit
Co., 338 F.2d 708, 725 (2d Cir. 1964)); accord
Holmes, 503 U.S. at 287 (Scalia, J. concurring) (“Life
is too short to pursue every human act to its most
8
remote consequences; ‘for want of a nail, a kingdom
was lost’ is a commentary on fate, not the statement
of a major cause of action against a blacksmith.”).
Here, Congress sought to ensure that such tenuous liability could not be used in this context, expressly stating that liability in cases such as this one
requires the defendants to violate the law and this
violation to be the “proximate cause of the harm for
which relief is sought.” 15 U.S.C. § 7903(5)(A)(iii).
The legislative intent could not be clearer. Congress
enacted the PLCAA to stop a rash of cases similar to
the one here. State and local governments in the
United States sought to subject this industry to the
same types of damages. Most of these cases failed,
including on proximate causation grounds. See, e.g.,
City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d
1099, 1114-16 (Ill. 2004) (“[W]e do not intend to minimize the very real problem of violent crime and the
difficult tasks facing law enforcement and other public officials,” but liability law does not allow a cause
of action “so broad and undefined that the presence
of any potentially dangerous instrumentality in the
community could be deemed to” invoke it.). But,
some succeeded. See City of Cincinnati v. Beretta
U.S.A. Corp., 768 N.E.2d 1136, 1141 (Ohio 2002).
Congress stated in the PLCAA that it enacted the
law to ensure these companies would not be held liable for “harm caused by those who criminally or unlawfully misuse” their products. Id. § 7901(a)(5).
This context makes this case an important one for
the Court to hear. In the two decades since City of
Chicago and City of Cincinnati were heard, many
other industries have been sued to pay costs associated with unlawful uses of lawful products. The
9
Court should grant the petition to ensure that proximate causation continues to distinguish between (a)
tortious acts that directly cause harm, from (b) manufacturing, selling and promoting lawful products.
Tortious acts are often considered intervening causes
that “occur after the defendant’s conduct” and cut-off
proximate causation. John L. Diamond, Cases and
Materials on Torts 256 (2001). Case law recognizes
that a party “may reasonably proceed upon the assumption that others will obey the criminal law,”
Keeton, supra, at 305, even though “there are bad
people in society who do bad things.” Stahlecker v.
Ford Motor Co., 667 N.W.2d 244, 251 (Neb. 2003).
In individual cases, where plaintiffs seek to subject manufacturers to liability for criminal acts of
others, the lack of proximate causation has been determinative in dismissing claims. In Stahlecker, a
person alleged that the manufacturer of her vehicle
and tire could be subject to liability after a defective
tire stranded her at night in a remote location, exposing her to risk of harm. See id. But, these companies are not the proximate cause of injuries caused
by criminals who harm stranded drivers merely because the companies sold car parts that failed. See
id. at 259 (finding criminal acts of third parties were
an “intervening cause which necessarily defeats
proof of the essential element of proximate cause”).
Indeed, in many of the industry-wide cases where
local and state governments have sued manufacturers and sellers of products over downstream risks of
products, individuals first attempted to bring personal injury claims against these companies. Those
cases were not successful because the individuals in
the cases could not establish that the companies
10
proximately caused them harm based on a tortfeasor’s independent actions. See Santiago v. Sherwin
Williams Co., 3 F.3d 546, 550 (1st Cir. 1993) (recognizing that proximate cause subjects defendants to
liability “only for the harm they have caused” and
separates “tortfeasors from innocent actors.”). Proximate cause requires much greater specificity.
Cases such as the one at bar attempt to overcome
this void and individual burdens of proof by substituting governments as plaintiffs and seeking derivative costs. They suggest it is foreseeable that selling
certain products and engaging in certain lawful
sales, when aggregated, will lead to criminal activity
and cause governments to spend resources dealing
with that criminal activity. Proximate causation does
not become clearer, though, by pulling back the causation lens to the level of blurred generalities.
The Court should grant the petition to clarify that
foreseeability of general conditions associated with
sales of certain products does not establish proximate causation for those conditions or monies spent
by governments to address the criminal misconduct
of its citizens. The importance of reinforcing these
legal principles for this and other such cases cannot
be overstated.
II. THIS PETITION IS EMBLEMATIC OF NUMEROUS LAWSUITS SEEKING TO IMPOSE
INDUSTRY-WIDE LIABILITY FOR COSTS
ASSOCIATED WITH MANUFACTURING
AND SELLING LAWFUL PRODUCTS
Over the past few decades, numerous lawsuits
have been filed that attempt to subject entire industries, as well as individual companies, to liability for
11
societal harms associated with lawful products.
Many of these lawsuits, as with the case at bar, have
sought to require large businesses, rather than individual wrongdoers or taxpayers, to remediate environmental damage or pay costs of social harms associated with categories of products, regardless of
wrongful conduct or proximate causation. They typically assert that a non-defective product had negative societal impacts, notwithstanding its benefits,
and that manufacturers should pay “their fair share”
of the attendant costs. See generally Victor E.
Schwartz et al., Can Governments Impose a New Tort
Duty to Prevent External Risks? The “No Fault” Theories Behind Today’s High-Stakes Government Recoupment Suits, 44 Wake Forest L. Rev. 923 (2009).
Around the same time that state and local governments filed suit against firearm manufacturers,
several governments sought to impose costs related
to lead poisoning and lead paint remediation on
companies that had lawfully manufactured paint and
pigment decades before, rather than on the landlords
who owned and were responsible for maintaining
properties with lead paint. See, e.g., Rhode Island v.
Lead Indus. Ass’n, Inc., 951 A.2d 428 (R.I. 2008); In
re Lead Paint Litig., 924 A.2d 484, 505 (N.J. 2007).
Most courts rejected these lawsuits, including on
proximate causation grounds. The Rhode Island Supreme Court, which was the first state high court to
rule in this litigation, affirmed that proximate causation is “a basic requirement” and that governments
cannot take causation shortcuts unavailable to individual plaintiffs. Lead Indus. Ass’n, 951 A.2d at 450.
“In addition to proving that defendant is the causein-fact of an injury, a plaintiff must demonstrate
proximate cause.” Id. Echoed the New Jersey Supreme
12
Court: “basic fairness dictates that a defendant must
have caused the [harm] to be held liable” for it. In re
Lead Paint Litig., 924 A.2d at 451.
Another series of claims has involved governments suing pharmaceutical manufacturers, distributors, and pharmacies over costs associated with
prescription opioid abuse. See, e.g. Rachel Graf, Ky.
AG Hires Motley Rice, Others in Opioid Fight,
Law360, Sept. 22, 2017.2 Several years ago, individuals brought personal injury claims against opioid
manufacturers, but courts concluded that prescription drug abuse was largely caused by physicians
who overprescribed the painkillers and individuals
who took the drugs illegally. See Max Mitchell, Can
Opiate Litigation Ever Be the New Mass Tort?, Legal
Intelligencer, Mar. 31, 2017.3 In reframing the litigation, government plaintiffs blamed manufacturers,
distributors, and pharmacies for generating a marketplace in which opioid addiction could arise. See id.
The lawsuits sought money for fighting opioid addiction and, in some cases, heroin addiction as well. See,
e.g., West Virginia v. McKesson Corp., No. 16-cv01772, 2016 WL 843443 (S.D. W. Va. Feb. 23, 2016).
The Oklahoma Supreme Court, which is the only
state high court to rule on this litigation, dismissed
the claims, in part on causation grounds. See State ex
rel. Hunter v. Johnson & Johnson, 499 P.3d 719
(Okla. 2021). The court observed that this lawsuit
“challenges us to rethink traditional notions of liabil2 https://www.law360.com/articles/966930/ky-ag-hires-motley-
rice-others-in-opioid-fight.
3 http://www.law.com/thelegalintelligencer/almID/
1202782732124.
13
ity and causation” because manufacturers do not
control how wholesalers distributed their products,
how others dispersed their products, or how individuals used their products. See id. at 728-29.
The burgeoning litigation over climate change has
followed this same playbook. See, e.g., City & County
of Honolulu v. Sunoco LP, 537 P.3d 1173, 1184 (Haw.
2023), petition for cert. pending (Nos. 23-947, 23952). More than thirty state and local governments
have sued energy producers for costs related to climate change, including paying for seawalls and other
infrastructure projects allegedly needed to abate the
impacts of the changing climate. See Manufacturers’
Accountability Project, Manufacturers’ Center for
Legal Action (providing detailed background on this
litigation).4 The Second Circuit, which is the only
court to reach the merits of the cases, underscored
the litigation’s causation problems. See City of New
York v. Chevron Corp., 993 F.3d 81, 86 (2d Cir. 2021).
It noted the City’s “ambitious” goal was “to effectively impose strict liability for the damages caused by
fossil fuel emissions no matter where in the world
those emissions were released (or who released
them).” Id. at 93. Yet, some state courts, as indicated
by the petition pending in the Court, have looked
past these fundamental causation issues.
In all of these cases, government plaintiffs are effectively asking courts to lower causation standards
for them. They are attempting to avoid traditional
notions of proximate causation by creating a Cuisinart of industry-wide liability, where all manufacturers are blended together so they do not have to
4 http://mfgaccountabilityproject.org/.
14
show that any specific defendant proximately caused
any specific harm. They generally seek to replace
proximate causation with risk contribution theories,
suggesting the chain of commerce is a viable substitute for the chain of causation, or imposing market
share or other types of enterprise liability. As the
Missouri Supreme Court stated in rejecting such a
proposition: “To the extent the city’s argument is
that the Restatement requires something less than
proof of actual causation or should replace actual
causation in a [government] case, it is incorrect.” City
of St. Louis v. Benjamin Moore & Co., 226 S.W.3d
110, 114 (Mo. 2007). Otherwise, as other courts have
noted, people would frame a case as a government
action “rather than a product liability suit” in order
to lower causation standards. See City of Chicago v.
Am. Cyanamid Co., No. 02 CH 16212, 2003 WL
23315567, at *4 (Ill. Cir. Ct. Oct. 7, 2003).
In particular, imposing joint and several liability
against entire industries or basing liability on market-share or risk contribution is not a substitute for
proximate causation. In product liability litigation
brought by private plaintiffs, courts have widely rejected theories of collective liability when plaintiffs
cannot establish that a particular product caused
their injuries. These rulings have occurred in the
context of litigation over asbestos,5 silicone breast
5 See, e.g., Case v. Fibreboard Corp., 743 P.2d 1062, 1067 (Okla.
1987) (“[P]ublic policy favoring recovery on the part of an innocent plaintiff does not justify the abrogation of the rights of a
potential defendant to have a causative link proven . . . where
there is a significant probability that those acts were related to
the injury.”); Bostic v. Georgia Pac. Corp., 439 S.W.3d 332, 340
(Tex. 2014) (reaffirming Texas’s rejection of “theories of collec-
15
implants,6 high-fructose corn syrup,7 among other
products.8 Courts have rejected attempts to impose
liability on manufacturers of brand-name medicines
when a plaintiff used a generic drug made by another company.9 And, a court has determined that
quick-serve restaurants do not proximately cause
obesity and other health problems. Pelman, 237 F.
Supp.2d at 538 (“No reasonable person could find
probable cause based on the facts in the Complaint
without resorting to wild speculation.”) (cleaned up).
The California courts have provided a cautionary
tale in its lead paint litigation, where a Court of Appeal allowed local governments to circumvent proximate causation. See People v. ConAgra Grocery
Prods. Co., 17 Cal.App.5th 51 (2017), cert. denied,
138 S. Ct. 377 (2018). The court eliminated the bedrock principle that a person can be liable only for
tive liability—alternative liability, concert of action, enterprise
liability, and market share liability”).
6 See Matter of New York State Silicone Breast Implant Litig.,
166 Misc.2d 85, 89-90 (N.Y. Sup. Ct. 1995).
7 See S.F. v Archer Daniels Midland Co., 594 Fed. Appx. 11, 13
(2d Cir. 2014) (rejecting market share liability against five
manufacturers of high-fructose corn syrup, which plaintiffs alleged was a toxic substance that caused diabetes).
8 See City of St. Louis, 226 S.W.3d at 116 (“[E]ven if it could
prove that because of that defendant’s market share there was
a statistical probability that its paint was in a certain percentage of the properties at issue — that would not establish that
the particular defendant actually caused the problem”).
9 See, e.g., In re Darvocet, Darvon, & Propoxyphene Prods. Liab.
Litig., 756 F.3d 917, 938-39, 941-54 (6th Cir. 2014) (applying
laws of 22 states); McNair v. Johnson & Johnson, 818 S.E.2d
852, 859-67 (W. Va. 2018); Huck v. Wyeth, Inc., 850 N.W.2d 353,
369-81 (Iowa 2014).
16
harms that he or she caused, holding that plaintiffs
need not “identify the specific location” of any home
with lead paint or “a specific product sold by each
such Defendant.” People v. Atlantic Richfield Co., No.
100CV788657, 2014 WL 1385823, at *44 (Cal. Super.
Ct. Mar. 26, 2014). Rather, three manufacturers
were jointly and severally liable for remediating all
lead paint regardless of who sold which lead paint,
when, or where. It was of no consequence that the
overwhelming majority of the lead paint to be abated
was sold by competitors, often after a defendant
stopped selling lead paint.
Most courts, though, have properly recognized
that removing wrongful causation from tort law
would create litigation chaos, “giv[ing] rise to a cause
of action . . . regardless of the defendant’s degree of
culpability.” Tioga Pub. Sch. Dist. v. U.S. Gypsum
Co., 984 F.2d 915, 921 (8th Cir. 1993). “All a creative
mind would need to do is construct a scenario describing a known or perceived harm of a sort that can
somehow be said to relate back to the way a company
or an industry makes, markets, and/or sells its nondefective, lawful product or service, and a [case]
would be conceived and a lawsuit born.” Spitzer v.
Sturm, Ruger & Co., 309 A.D.2d 91, 96 (N.Y. App.
Div. 2003). The list of targets for such litigation
would be endless. Terrorists may use electrical components or watches as components in missiles or
bombs.10 Artificial intelligence products have un10 See, e.g., David Brunnstrom, Debris from North Korean Mis-
sile in Ukraine Could Expose Procurement Networks, Reuters,
Feb. 24, 2024 (reporting a North Korean missile fired by Russia
in Ukraine contained a large number of components linked to
U.S.-based companies); Denise Winterman, Casio F-91W: The
17
leashed opportunities for fraud.11 Ski masks are used
to conceal the faces of those who commit crime.12
Knives are commonly used in robberies and homicides.13 The list goes on and on.
In each of these situations, manufacturers are
making and selling lawful products. They, like others, may be aware that some of their products will be
diverted, used or misused, sometimes criminally, in
ways that cause harm. The Court should grant the
petition to reaffirm traditional notions of proximate
causation.
III. MANAGING PUBLIC RISKS ASSOCIATED
WITH INHERENTLY HARMFUL PRODUCTS SHOULD REMAIN A REGULATORY,
NOT LITIGATION MATTER
Finally, the Court should grant the petition to ensure that no government—foreign or domestic—can
Strangely Ubiquitous Watch, BBC News, Apr. 26, 2011 (reporting that a $12 digital watch was used in terrorist bombs).
11 See, e.g., Heather Chen & Kathleen Magramo, Finance Work-
er Pays Out $25 Million After Video Call with Deepfake ‘Chief
Financial Officer’, CNN, Feb. 4, 2024; Emily Flitter & Stacy
Cowley, Voice Deepfakes Are Coming for Your Bank Balance,
N.Y. Times, Aug. 30, 2023.
See Amanda Hernandez, Are Ski Mask Bans a CrimeFighting Solution? Some Cities Say Yes, Stateline, Jan. 10,
2024.
12
13 See Statista, Number of Murder Victims in the United States
in 2022, by Weapon Used, https://www.statista.com/statistics/
195325/murder-victims-in-the-us-by-weapon-used/ (last visited
May 22, 2024); Statista, Number of Robberies in the United
States in 2022, by Weapon Used, https:/ /www.statista.com/statistics/251914/number-of-robberies-in-the-us-by-weapon/ (last
visited May 22, 2024).
18
use the civil justice system to regulate lawful products by imposing untenable liability costs on their
continued production and sale. These government
plaintiffs often appreciate that the effect of “holding
producers liable for all the harm their products proximately cause”—not that they proximately cause—is
effectively prohibiting “altogether the continued
commercial distribution of such products.” See James
A. Henderson, Jr. & Aaron D. Twerski, Closing the
American Products Liability Frontier: The Rejection
of Liability Without Defect, 66 N.Y.U. L. Rev. 1266,
1329 (1991) (emphasis added); see also City of New
York, 993 F.3d at 93 (“If the Producers want to avoid
all liability, then their only solution would be to
cease global production altogether.”).
Often, regulation through litigation, in addition to
seeking financial relief, is a goal of these actions. See,
e.g., Establishing Accountability for Climate Damages: Lessons from Tobacco Control, Summary of the
Workshop on Climate Accountability, Public Opinion,
and Legal Strategies, Union of Concerned Scientists
& Climate Accountability Inst. (Oct. 2012) (“Even if
your ultimate goal might be to shut down a company,
you still might be wise to start out by asking for
compensation for injured parties.”).14 Here, Respondent is seeking an injunction to directly regulate Petitioners’ business. See Pet. at 12. Some may consider
Respondents’ proposed reforms sensible, but it is not
the role of the courts to impose these changes.
14 https://www.ucsusa.org/sites/default/files/attach/2016/04/
establishing-accountability-climate-change-damages-lessonstobacco-control.pdf.
19
Some scholars have argued that proximate causation in cases like this one should be relaxed to provide a remedy whenever they perceive that the regulatory process has failed to address a public welfare
issue. See, e.g., David A. Dana, Public Nuisance Law
When Politics Fails, 83 Ohio St. L.J. 61 (2022). They
believe courts should be open to regulating through
litigation “notwithstanding the democratic legitimacy and technological competence objections.” Id. at
66. They also acknowledge that this view casts aside
notions of wrongdoing and proximate causation. See
Leslie Kendrick, The Perils and Promise of Public
Nuisance, 132 Yale L.J. 702, 759 (2023) (acknowledging this view is a “problem for those who think tort is
exclusively the province of wrongful conduct”). They
believe liability against manufacturers and sellers
allow the impact of a public welfare issue to be
spread among all users of a product, akin to a tax. Id.
at 770. The result, though, would be a “Rorschach
blot” for causation, where courts can impose liability
without established principles. Thomas W. Merrill,
The New Public Nuisance: Illegitimate and Dysfunctional, 132 Yale L.J. Forum 985, 988 (2023).
Ensuring liability law properly aligns with and
does not overtake statutory or regulatory authority is
a significant concern for amici and their members
because manufacturers of all types of products with
inherent risks—from prescription medicines to
household chemicals to energy products to alcoholic
beverages—must be able to rely on government regulations seeking to balance consumer and public risks.
Weighing costs, benefits and social value of producing and using these products and factoring in any
adverse effects is part of the delicate balancing for
which only legislatures, and administrative agencies
20
pursuant to legislative authority, are suited. If a
company violates any such regulation, there are enforcement remedies tailored to that violation.
Here, the Court should grant the petition, prevent
the circumvention of the PLCAA, and reinforce the
traditional notions of proximate causation in cases
such as this one. Addressing societal costs associated
with product use or misuse does not justify altering
longstanding liability law.
CONCLUSION
For these reasons, amici curiae respectfully request that this Court grant the Petition.
Respectfully submitted,
Philip S. Goldberg
Counsel of Record
Cary Silverman
SHOOK, HARDY & BACON L.L.P.
1800 K Street, N.W., Suite 1000
Washington, D.C. 20006
(202) 783-8400
pgoldberg@shb.com
Erica Klenicki
Michael A. Tilghman II
THE NAM LEGAL CENTER
733 10th Street, N.W., Suite 700
Washington, D.C. 20001
21
H. Sherman Joyce
Lauren Sheets Jarrell
AMERICAN TORT REFORM ASSOCIATION
1101 Connecticut Ave., N.W., Suite 400
Washington, DC 20036
Dated: May 22, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.