Wednesday, January 14, 2009
Product liability plaintiffs and the issue of proximate cause
Next week's (January 19) National Law Journal (available here now if you have a subscription) will feature a column by J. Russell Jackson on products liability in which he discusses the fact that courts continue to expand the reach of who can be a plaintiff in products liability cases and how this forces courts to discuss the issue of proximate cause. Here is an excerpt: "The plaintiffs in products liability lawsuits today often have little, if any, relationship to the underlying sale of the challenged product. Increasingly, lawyers are creatively defining their plaintiff classes — particularly in the pharmaceutical context — to be comprised of so-called "third-party payors," such as insurance and health benefit funds. Typically, they argue that the product seller has perpetrated a fraud on the entire medical profession, and that therefore proof of reliance for any individual's purchase should not be required. Cf. In re Zyprexa Prods. Liab. Litig., 253 F.R.D. 69, 190 (E.D.N.Y. 2008) ("The [U.S. Supreme] Court held that the person who suffered the loss need not be the one to whom the fraudulent words were directed . . . .The fraud was directed to prescribing doctors. The overpayments were made by third-party and individual payors").One consequence of using plaintiffs who are so far removed from the underlying transactions, however, is that courts increasingly are forced to confront the issue of proximate cause in early motion practice. Recent decisions suggest that the further a plaintiff is removed from the underlying sales transaction, the less likely it is that the court will find proximate causation."