Outrageous Fortune and the Criminalization of Mass Torts

The case of the blameworthy-but-fortunate defendant has emerged as one of the most perplexing scenarios in mass tort litigation today. One need look no further than the front page of the newspaper to find examples of mass tort defendants said to have engaged in irresponsible conduct – even conduct that one might regard as morally outrageous in character – but that nonetheless advance eminently plausible contentions that they have not caused harm to others. This issue is not merely a matter for abstract speculation. A now-familiar mass tort scenario involves a defendant that markets a product without informing consumers about tentative suspicions of some health hazard. These initial suspicions, however, ultimately may not prove true. In fact, subsequent scientific research may support, perhaps convincingly, a contention by such a defendant that there simply is no causal link between its product and the malady from which the plaintiff suffers. The most prominent example of this first scenario is the ongoing controversy over silicone gel breast implants. A second and even more problematic situation involves a defendant that does not merely fail to warn consumers about a risk that may be associated with its product, but that affirmatively induces repeated use through outright fraud or obfuscation of the product’s risk. This second scenario describes the allegations advanced in the current controversy over nicotine in tobacco products. Here, the problem also is one of causation, but of a different sort: the centuries-old awareness of the hazards of smoking, including the widespread recognition that the practice can be exceedingly hard to quit, makes it difficult to attribute the maladies of current smokers to an informational shortfall brought about by the tobacco industry. Fraud is the cause of harm, after all, only when one’s fraudulent misrepresentations are apt to be believed and acted upon – only when, at the very least, other people are not saying loudly that one is lying. In this respect, the causal problem posed by the tobacco litigation is by no means restricted to that particular context. Rather, the same concerns likely would surface with respect to the many variations on the same theme that one might envision in the future for the alcohol industry, the fast-food industry, or the purveyors of other products with long-recognized health risks.