Amicus Curiae Brief — Smith & Wesson Brands, Inc., et al., Petitioners v. Estados Unidos Mexicanos
Supreme Court briefDec 3, 2024
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Nos. 23-1141
In the Supreme Court of the United States
______________________
SMITH & WESSON BRANDS INC., ET AL.,
Petitioners,
v.
ESTADOS UNIDOS MEXICANOS,
Respondent.
______________________
BRIEF OF AMICI CURIAE
PRODUCT LIABILITY ADVISORY COUNCIL
AND AMERICAN TORT REFORM ASSOCIATION
IN SUPPORT OF PETITIONERS
______________________
On 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
December 3, 2024
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND
SUMMARY OF ARGUMENT ............................... 2
ARGUMENT ............................................................... 5
I.
FORESEEABILITY IS NOT A
SUBSTITUTE FOR PROXIMATE
CAUSATION ................................................... 5
II. THIS CASE IS EMBLEMATIC OF
NUMEROUS LAWSUITS SEEKING TO
IMPOSE INDUSTRY-WIDE LIABILITY
FOR COSTS ASSOCIATED WITH
MANUFACTURING AND SELLING
LAWFUL PRODUCTS ................................. 12
III. MANAGING PUBLIC RISKS
ASSOCIATED WITH INHERENTLY
HARMFUL PRODUCTS SHOULD
REMAIN A REGULATORY, NOT
LITIGATION MATTER ................................ 20
CONCLUSION .......................................................... 23
ii
TABLE OF AUTHORITIES
Cases
Page
Alston v. Advanced Brands & Importing Co.,
494 F.3d 562 (6th Cir. 2007) ................................. 4
Bank of Am. Corp. v. City of Miami, Fla.,
581 U.S. 189 (2017)............................................ 3, 6
Bostic v. Ga. Pac. Corp.,
439 S.W.3d 332 (Tex. 2014) ................................. 17
Case v. Fibreboard Corp.,
743 P.2d 1062 (Okla. 1987) ................................. 17
City of Chicago v. Am. Cyanamid Co.,
No. 02 CH 16212, 2003 WL 23315567
(Ill. Cir. Ct. Oct. 7, 2003) ..................................... 16
City of Chicago v. Beretta U.S.A. Corp.,
821 N.E.2d 1099 (Ill. 2004).................................. 11
City of Cincinnati v. Beretta U.S.A. Corp.,
768 N.E.2d 1136 (Ohio 2002) .............................. 11
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) ............................. 15, 21
City & Cnty. of Honolulu v. Sunoco LP,
537 P.3d 1173 (Haw. 2023), petition for cert.
pending (Nos. 23-947, 23-952) ....................... 14, 15
City of New Haven v. Purdue Pharma, L.P.,
2019 WL 423990 (Conn. Super. Ct.,
Jan. 8, 2019) ......................................................... 22
iii
City of Philadelphia v. Beretta U.S.A. Corp.,
277 F.3d 415 (3rd Cir. 2002) ................................. 3
City of St. Louis v. Benjamin Moore & Co.,
226 S.W.3d 110 (Mo. 2007) ............................ 16, 17
Dillon v. Legg, 441 P.2d 912 (Cal. 1968) .................... 7
E. Enters. v. Apfel, 524 U.S. 498 (1998) ..................... 8
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) ......... 8
Holmes v. Secs. Inv’r Prot. Corp.,
503 U.S. 258 (1992)........................................ 3, 6, 8
Huck v. Wyeth, Inc.,
850 N.W.2d 353 (Iowa 2014) ............................... 22
In re Darvocet, Darvon, & Propoxyphene Prods.
Liab. Litig., 756 F.3d 917 (6th Cir. 2014) .......... 17
In re Lead Paint Litig.,
924 A.2d 484 (N.J. 2007) ..................................... 13
In re Methyl Tertiary Ether Prods. Liab. Litig.,
725 F.3d 65 (2d Cir. 2013) ................................... 10
In re Paraquat Prods. Liab. Litig.,
MDL No. 3004, 2022 WL 451898
(S.D. Ill. Feb. 14, 2022) ........................................ 10
Matter of N.Y. State Silicone Breast Implant
Litig., 166 Misc.2d 85 (N.Y. Sup. Ct. 1995) ........ 17
iv
McNair v. Johnson & Johnson,
818 S.E.2d 852 (W. Va. 2018) .............................. 17
Pacific Mut. Life Ins. Co. v. Haslip,
499 U.S. 1 (1991) ................................................... 8
Palsgraf v Long Is. R.R. Co.,
162 N.E. 99 (N.Y. 1928) ......................................... 7
People v. Atl. Richfield Co.,
No. 100CV788657, 2014 WL 1385823
(Cal. Super. Ct. Mar. 26, 2014) .......................... 18
People v. ConAgra Grocery Prods. Co.,
17 Cal. App. 5th 51 (2017), cert. denied,
138 S. Ct. 377 (2018)............................................ 18
Pelman v. McDonald’s Corp.,
237 F. Supp. 2d 512 (S.D.N.Y. 2003) .............. 4, 17
Petition of Kinsman Transit Co.,
338 F.2d 708 (2d Cir. 1964) ................................... 8
Rhode Island v. Lead Indus. Ass’n, Inc.,
951 A.2d 428 (R.I. 2008) ...................................... 13
S.F. v Archer Daniels Midland Co.,
594 Fed. App’x 11 (2d Cir. 2014) ......................... 17
Santiago v. Sherwin Williams Co.,
3 F.3d 546 (1st Cir. 1993) ...................................... 9
Spitzer v. Sturm, Ruger & Co.,
309 A.D.2d 91 (N.Y. App. Div. 2003) .................. 19
Stahlecker v. Ford Motor Co.,
667 N.W.2d 244 (Neb. 2003) .................................. 9
v
State ex rel. Hunter v. Johnson & Johnson,
499 P.3d 719 (Okla. 2021) ................................... 14
Steamfitters Local Union No. 420 Welfare
Fund v. Phillip Morris, Inc.,
171 F.3d 912 (3d Cir. 1999) ................................... 6
Suchomajcz v. Hummel Chem. Co.,
524 F.2d 19 (3d Cir. 1975) ................................... 10
SUEZ Water N.Y. Inc. v. E.I. du Pont de
Nemours & Co., 578 F. Supp. 3d 511
(S.D.N.Y. 2022) .................................................... 15
Tioga Pub. Sch. Dist. v. U.S. Gypsum Co.,
984 F.2d 915 (8th Cir. 1993) .............................. 19
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) ................................. 14
Statutes
Protection of Lawful Commerce in Arms
Act (PLCAA), 15 U.S.C. § 7903 ....................... 5, 11
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/ .................... 19
vi
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 .................................... 19
David A. Dana, Public Nuisance Law When
Politics Fails, 83 Ohio St. L.J. 61 (2022)............. 21
John L. Diamond, Cases and Materials on
Torts (2001) ............................................................ 9
Dan B. Dobbs, The Law of Torts § 180 (2001)............ 5
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....................... 19
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).......................................... 21
Philip S. Goldberg, Is Today’s Attempt at a Public Nuisance “Super Tort” The Emperor’s New
Clothes of Modern Litigation?, 31 Mealey’s
Emerging Toxic Torts 15 (Nov. 1, 2022) ............. 18
Rachel Graf, Ky. AG Hires Motley Rice, Others
in Opioid Fight, Law360, Sept. 22, 2017,
https://www.law360.com/articles/966930 ...... 13-14
vii
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/ ... 19
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) ................. 20
Leslie Kendrick, The Perils and Promise of Public Nuisance, 132 Yale L.J. 702 (2023) ........... 21-22
Thomas W. Merrill, The New Public Nuisance:
Illegitimate and Dysfunctional,
132 Yale L.J. Forum 985 (2023) .......................... 22
Max Mitchell, Can Opiate Litigation Ever Be
the New Mass Tort?, Legal Intelligencer,
Mar. 31, 2017 ....................................................... 14
David G. Owen, Figuring Foreseeability,
44 Wake Forest L. Rev. 1277 (2009) ..................... 6
Prosser & Keeton on Torts (5th ed. 1984) .................. 6
Restatement (Third) of Torts: Liability for Economic Harm § 8 (2020) ........................................ 16
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)........... 13
viii
Statista, Number of Murder Victims in the United States in 2023, by Weapon Used,
https://www.statista.com/statistics/195325/
murder-victims-in-the-us-by-weapon-used/
(last visited Dec. 2, 2024) .................................... 20
Statista, Number of Robberies in the United
States in 2023, by Weapon Used,
https://www.statista.com/statistics/251914/
number-of-robberies-in-the-us-by-weapon/
(last visited Dec. 2, 2024) .................................... 20
Denise Winterman, Casio F-91W: The Strangely
Ubiquitous Watch, BBC News, Apr. 26, 2011,
https://www.bbc.com/news/magazine13194733 .............................................................. 19
1
INTEREST OF AMICI CURIAE1
Amici are the Product Liability Advisory Council
(PLAC) 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.
PLAC is a nonprofit professional association of
corporate members representing a broad crosssection of product manufacturers. PLAC contributes
to the improvement and reform of the law, with emphasis on the law governing the liability of manufacturers of products and those in the supply chain.
PLAC’s perspective is derived from the experiences
of a corporate membership that spans a diverse
group of industries in various facets of the manufacturing sector. In addition, several hundred leading
product litigation defense attorneys are sustaining
(non-voting) members of PLAC. Since 1983, PLAC
has filed over 1,200 amicus curiae briefs on behalf of
its members, presenting the broad perspective of
product manufacturers seeking fairness and balance
in the application and development of the law as it
affects product risk management.
ATRA is a broad-based coalition of businesses,
corporations, municipalities, associations, and professional firms that have pooled their resources to
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.
2
promote reform of the civil justice system with the
goal of ensuring fairness, balance, and predictability
in civil litigation. For more than three decades,
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 long served to protect
manufacturers engaged in lawful commerce from
unprincipled liability over their products. Thus, 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).
Proximate causation has often been a key safeguard
against such unprincipled liability.
Accordingly, the Court should reverse the ruling
below. In doing so, it should correct several misstatements the First Circuit made about proximate
causation. First, the First Circuit based its ruling on
its finding that foreseeability alone could satisfy
proximate cause. See Estados Unidos Mexicanos v.
3
Smith & Wesson Brands, Inc., 91 F.4th 511, 534 (1st
Cir. 2024). However, as this Court has ruled, “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). Indeed,
cases similar to this one that have been brought by
local governments within the United States have
been dismissed for lack of proximate cause. See, e.g.,
City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d
415, 423 (3d Cir. 2002). Courts in these cases have
echoed this Court’s longstanding jurisprudence that
proximate cause requires “a direct relation between
the injury asserted and the injurious conduct alleged.” Id. (quoting Holmes v. Secs. Inv’r Prot. Corp.,
503 U.S. 258, 268-69 (1992)). And, governments in
these cases, as here, did not establish the necessary
proximate cause between selling lawful products and
public safety concerns over how some people used or
misused those products. See id.
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
has known risks of harm satisfies proximate cause
whenever those harms occur—regardless of how remote the harms were from acts of the manufacturers
and sellers and whether these acts were unlawful.
And third, the complaint seeks to impose joint-andseveral liability on an industry for a broad range of
expenses rather than allege any particular manufacturer’s conduct caused any specific harm alleged.
4
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). It is also foreseeable that some
people will become obese or develop diabetes from
over-consuming 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
principled stopping point for this type of liability.
Many social issues related to products may be foreseeable in a general, aggregated sense. But, when
there are no specific incidents of harm directly
caused by the manufacturers or sellers, then those
manufacturers and sellers are not liable for the resulting harms. As here, the harms are often caused
by intervening acts—including criminal acts—of
third parties.
The First Circuit’s formulation of proximate causation, therefore, cannot stand; it violates basic tenets of American jurisprudence. Rather than subject
defendants to liability for harm they directly caused,
which is the essence of American tort law, these lawsuits will be used to generate revenue for local, state
and foreign governments from manufacturers and
sellers, regardless of fault, and frustrate federal and
state regulatory regimes that take considerable care
5
to manage public risks associated with sales of lawful products. Here, a foreign country is doing both.
Affirming the ruling below, 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 and sellers of lawful products, including litigations that have already been largely dismissed for want of proximate cause.
For these reasons, as discussed in detail below,
amici urge the Court to reverse the ruling below and
hold that proximate cause cannot be satisfied here by
the acts of manufacturing, selling and marketing
lawful products, even when those products have
known, foreseeable risks. There is no doubt that gun
violence, just like lead poisoning, litter and drunk
driving, are critical public health and safety matters.
But, these facts alone do not give rise to deep-pocket
jurisprudence against market participants that did
not directly cause the harms alleged.
ARGUMENT
I. 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
6
cause is to “limit liability even where the fact of causation is clearly established,” including where manufacturers put into the stream of commerce products
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.
This Court has held, contrary to the ruling below,
that “foreseeability alone does not ensure the close
connection that proximate cause requires.” Bank of
Am. Corp., 581 U.S. at 202. Foreseeability is a necessary, but not sufficient element of proximate cause.
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 or the
manufacture of a line of products, but those harms
are too remote from these acts or manufacture 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).
The concerns about over-reliance on foreseeability
to create liability, as here, has arisen under both
proximate causation and duty analyses. Consider
7
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 liability for all
downstream injuries. A direct relationship between
the alleged misconduct and specific harms asserted
is required and missing in these remote cases.
Indeed, the California Supreme Court has recognized the legal predicament of over-relying on foreseeability to justify liability. 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 foreseea-
8
bility” 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 short, foreseeability alone fails to put people on notice that they
may be liable for certain harms. See E. Enters. v. Apfel, 524 U.S. 498, 528-29 (1998) (liability “that could
not have been anticipated” stretches constitutional
limits); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S.
1, 43 (1991) (O’Connor, J., dissenting) (vagueness
doctrine applies to the common law).
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
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.”).
That point has clearly been reached here, where the
harm was caused by unlawful acts of others.
9
Tortious acts of third parties 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).
As a general rule, 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 Stahlecker, for example, 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”).
For these reasons, when individual plaintiffs have
sought to subject manufacturers to liability for criminal acts of others, the lack of proximate causation
has been determinative in dismissing claims. See,
e.g., Santiago v. Sherwin Williams Co., 3 F.3d 546,
550 (1st Cir. 1993). In Santiago, which involved allegations of lead poisoning against companies that sold
lead-based paint decades earlier, the court explained
that proximate cause subjects defendants to liability
“only for the harm they have caused” and separates
“tortfeasors from innocent actors.” Id. Proximate
cause requires much greater specificity in directly
connecting the manufacturers to the harms alleged.
In the lead paint cases, the third-party tortfeasors
10
were often landlords who allowed the paint to deteriorate to the point that the paint became hazardous.
In order to subject manufacturers to liability for
illegal acts of third parties—here, criminal acts of
Mexican drug cartels—the manufacturers must be
complicit in the illegal activities themselves. See Suchomajcz v. Hummel Chem. Co., 524 F.2d 19 (3d Cir.
1975) (manufacturer sold chemicals to retailer with
knowledge retailer would use them in selling illegal
firecracker kits). The requirement for such a direct
connection applies equally in public nuisance cases,
where complicity requires a manufacturer to have
specific knowledge about or instruct the consumer to
use, dispose of or misuse the product to create the
nuisance. See, e.g., In re Methyl Tertiary Ether Prods.
Liab. Litig., 725 F.3d 65, 121, 123 (2d Cir. 2013) (defendant “knew specifically that tanks in the New
York City area leaked,” “conducted ‘operations near
the relative geographic areas” of the wells at issue,”
and had “extensive involvement in the [local] gasoline market”). These courts found it is insufficient to
allege the manufacturer “knew of the dangers” and
“failed to tackle the problem” of others’ illegal acts.
In re Paraquat Prods. Liab. Litig., MDL No. 3004,
2022 WL 451898, at *11 (S.D. Ill. Feb. 14, 2022).
Cases, such as the one at bar, attempt to circumvent the burdens of proof that individuals face 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. The Court should
reject any such attempt to water down proximate
11
cause in government recoupment suits, which allege
acts and harms even further away from the misconduct that harmed the individuals. Proximate causation does not become clearer by pulling back the causation lens to the level of blurred generalities.
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 for
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 were seeking to subject this industry
to the same types of damages as in this case. Most of
those cases rightly 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 this law to ensure these
companies would not be held liable for “harm caused
by those who criminally or unlawfully misuse” their
products. 15 U.S.C. § 7901(a)(5).
In deciding this case, therefore, the Court should
clarify that the principles of proximate causation are
12
not malleable and do not become more permissive
when governments bring the suits. Proximate causation, including in government recoupment litigation,
must continue to distinguish (a) tortious acts that
directly cause harm from (b) manufacturing, selling
and promoting lawful products that someone else uses or misuses to cause harm. The Court should hold
that foreseeability that risks associated with lawful
products may materialize does not establish proximate cause against manufacturers or sellers of those
products when such harms occur, including in lawsuits brought by governments over money spent to
address societal issues associated with these hams.
II. THIS CASE IS EMBLEMATIC OF NUMEROUS LAWSUITS SEEKING TO IMPOSE
INDUSTRY-WIDE LIABILITY FOR COSTS
ASSOCIATED WITH MANUFACTURING
AND SELLING LAWFUL PRODUCTS
The proximate causation concerns this litigation
raises are not unique to this case. Over the past
three decades, manufacturers and sellers across several industries have been sued to pay costs associated with unlawful uses of lawful products. These lawsuits generally attempt to subject individual companies, or entire industries, to liability for societal
harms associated with lawful products they sold.
Many of these lawsuits have sought to require businesses, rather than individual wrongdoers or taxpayers, to remediate environmental damage or pay
costs of social harms associated with categories of
products, regardless of proximate causation. They
typically assert that a non-defective product had
negative societal impacts, notwithstanding its benefits, and that manufacturers should pay “their fair
13
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).
Most courts have properly rejected these lawsuits,
including on proximate causation grounds. As discussed, around the time the PLCAA was enacted,
several governments were seeking to impose costs
related to lead poisoning and lead paint remediation
on companies that lawfully manufactured lead paint
and pigment decades earlier—rather than on landlords 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). The Rhode Island Supreme Court, which was the first state high
court to rule in that 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 cause-in-fact of an injury, a plaintiff must
demonstrate proximate cause.” Id. Echoed the New
Jersey Supreme 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 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.
14
22, 2017.2 Several years earlier, 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-cv-01772,
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 so far, 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 liability 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 & Cnty. of
Honolulu v. Sunoco LP, 537 P.3d 1173, 1184 (Haw.
2023), petition for cert. pending (Nos. 23-947, 232 https://www.law360.com/articles/966930/ky-ag-hires-motley-
rice-others-in-opioid-fight.
3 http://www.law.com/thelegalintelligencer/almID/
1202782732124.
15
952). 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 climate litigation petitions pending in front of
this Court, have looked past these fundamental causation issues. See Nos. 23-947, 23-952.
Overall, many states apply “what appears to be
an absolute rule”: if a product after being sold, creates or contributes to a harm, including a public nuisance, the manufacturer or seller is not liable unless
it “controls or directs” the criminal or tortious activity causing that harm. SUEZ Water N.Y. Inc. v. E.I.
du Pont de Nemours & Co., 578 F. Supp. 3d 511, 546
(S.D.N.Y. 2022). The Third Restatement of Torts recently affirmed that public nuisance liability, in particular, has been rejected in such product cases “because the common law of public nuisance is an inapt
vehicle for addressing the conduct at issue. Mass
harms caused by dangerous products are better addressed through products liability, which has been
4 http://mfgaccountabilityproject.org/ (last visited Dec. 2, 2024).
16
developed and refined with sensitivity to the various
policies at stake.” Restatement (Third) of Torts: Liability for Economic Harm § 8 cmt. g (2020).
In order to avoid this jurisprudence, government
plaintiffs in these litigations, as here, are effectively
asking courts to lower proximate 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
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).
The Court should clarify here that imposing jointand-several liability against entire industries or basing liability on market-share or risk contribution is
not a substitute for proximate causation. Again, in
litigation brought by private plaintiffs, courts have
widely rejected theories of collective liability when
17
plaintiffs cannot establish that a particular product
caused their injuries. These rulings have occurred in
the context of litigation over asbestos,5 silicone
breast implants6 and 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 per5 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. Ga. Pac. Corp., 439 S.W.3d 332, 340 (Tex.
2014) (reaffirming Texas’s rejection of “theories of collective liability—alternative liability, concert of action, enterprise liability, and market share liability”).
6 See Matter of N.Y. 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. App’x 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).
18
son could find probable cause based on the facts in
the Complaint without resorting to wild speculation.”) (cleaned up). The same tenets of proximate
cause must apply in government litigation as well.
The California courts 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 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. Atl. Richfield Co., No. 100CV788657, 2014
WL 1385823, at *44 (Cal. Super. Ct. Mar. 26, 2014).
Rather, three manufacturers were held 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 years after a defendant stopped selling
lead paint. This ruling was a watershed moment
leading to the recent mass proliferation of government recoupment litigation. Although some lawsuits
have led to trial court victories and settlements, the
causation theories have not been widely validated by
state or federal courts. See Philip S. Goldberg, Is Today’s Attempt at a Public Nuisance “Super Tort” The
Emperor’s New Clothes of Modern Litigation?, 31
Mealey’s Emerging Toxic Torts 15 (Nov. 1, 2022).
Most courts have properly recognized that removing proximate causation from tort law would create
litigation chaos, “giv[ing] rise to a cause of action . . .
19
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 non-defective, 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).
If the Court allows this case to proceed under
such a watered-down view of proximate cause, the
targets for this type of litigation would be endless.
Companies that make watches terrorists use as components in bombs would be sued by victims of those
terrorist attacks, regardless of whether the companies had any connection to the unlawful acts.10 Same
for companies whose software and other products are
misused to defraud people,11 whose ski masks are
used to conceal faces of those who commit crimes,12
10 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
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
20
and whose knives are used in robberies and homicides.13 The list would go on and on.
In each of these situations, manufacturers are
making and selling lawful products. They, like others, may be aware that, in the aggregate, some of the
products they sell lawfully will be diverted, used or
misused, sometimes criminally, in ways that cause
harm. The Court should reaffirm traditional notions
of proximate causation to ward off these litigations.
III. MANAGING PUBLIC RISKS ASSOCIATED
WITH INHERENTLY HARMFUL PRODUCTS SHOULD REMAIN A REGULATORY,
NOT LITIGATION MATTER
Finally, in ruling in this case, the Court should
ensure that no government—foreign or domestic—
can use the civil justice system to regulate lawful
products by imposing untenable liability costs on the
production and sale of those products. These government plaintiffs often appreciate that the effect of
“holding producers liable for all the harm their products proximately cause”—not that the producers
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);
13 See Statista, Number of Murder Victims in the United States
in 2023, by Weapon Used, https://www.statista.com/statistics/
195325/murder-victims-in-the-us-by-weapon-used/ (last visited
Dec. 2, 2024); Statista, Number of Robberies in the United
States in 2023, by Weapon Used, https:/ /www.statista.com/statistics/251914/number-of-robberies-in-the-us-by-weapon/ (last
visited Dec. 2, 2024).
21
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.
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
14 https://www.ucsusa.org/sites/default/files/attach/2016/04/
establishing-accountability-climate-change-damages-lessonstobacco-control.pdf.
22
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).
Allowing such lawsuits would give local, state and
foreign officials unbridled power to determine which
alleged social ills manufacturers and sellers of products would be “taxed” through litigation to solve. As
courts in other contexts have held, “it might be
tempting to wink at this whole thing and add pressure on parties who are presumed to have lots of
money. . . . But it’s bad law.” City of New Haven v.
Purdue Pharma, L.P., 2019 WL 423990, at *8 (Conn.
Super. Ct., Jan. 8, 2019). The Supreme Court of Iowa
explained that making a party who is not at-fault
pay for the alleged damages is “[d]eep pocket jurisprudence [which] is law without principle.” Huck v.
Wyeth, Inc., 850 N.W.2d 353, 380 (Iowa 2014) (internal quotation omitted).
Ensuring liability law properly aligns with and
does not undermine 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.
23
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,
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 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 regulatory and liability law, including proximate causation.
CONCLUSION
For these reasons, amici curiae respectfully request that this Court reverse the ruling below.
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
Dated: December 3, 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.