Obama On Tort Law

Anthony J. Sebok, writing for Findlaw, offers a brief analysis of the impact that an Obama administration may have on tort law. He concludes that tort reform may stop dead in its tracks, but that Obama will have little impact on this area of law and that Congress will be more important.

My reaction is that Sebok is "not even wrong." Nothing he says is obviously inaccurate, but he missed the point. He is unaware of, or overlooked, the real key tort issues of the last eight years, many of which are thoroughly within the President's province.

The most important tort issue during the Bush Administration has been the degree to which federal regulatory involvement or national security concerns pre-empt state and federal tort remedies. The Bush Administration have frequently taken this position, often over staff recommendations from within regulatory agencies, and is currently pushing a final raft of regulations to achieve the same result before President Bush's term ends on January 20, 2009.

For example, a product liability case pending now involves a drug which was approved by the Food and Drug Administration on the basis of fraudulent and incomplete information provided to the agency, and that approval was later revoked. A Michigan statute allows a product liability suit to proceed to trial if the injured party can prove that the normally pre-emptive FDA approval was based upon fraud and is no longer in force. The Bush Administration has argued to the U.S. Supreme Court that state lawsuits should be barred in all cases by an FDA approval, even if it appear in hindsight to have been improperly secured. The policy argument made has been the highly disputed claim that this would unduly burden the FDA with requests for information and testimony related to product liability lawsuits.

An Obama administration very likely would not have asserted FDA pre-emption at all in this situation, in accordance with FDA staff recommendation, rather than taking politically motivated action to protect industry bad actors.

Similarly, the Bush Administration has largely taken the position that military contractors are immune from civil liability in either Iraq or the U.S., even for intentional torts like rape, committed against fellow U.S. contractors. Many states, however, while permitting waivers of liability for negligence, do not give effect to contractual waivers related to intentional torts and assume jurisdiction in cases where there is a U.S. party who is connected to the incident as either a Plaintiff or a Defendant, particularly if there is no other forum available for the suit. Many U.S. Courts would also permit rescission of a contractual waiver, if a party to that waiver did not act in good faith to make its obligation to provide a fair forum for disputes arising under the employment contract of the parties.

As a third example, the Bush Administration has used the claim of a state secrets privilege as a complete defense to a variety of suits against the government, even where the party suing is not a party to a privacy agreement with the government. The doctrine was invented in a plane accident where the state secret assertions made by the federal government were lies, and it is not at all clear that the doctrine was ever intended to be more than an evidence rule, as opposed to a form of governmental immunity. An Obama administration is likely to take a less hard line in this kind of case.

Finally, the Bush Administration and its relevant appointees, have taken a very hard line in interpreting law designed to protect employees in unions, in the civil service, and in private employment, both against direct violations of rights, and involving retaliation or whistle blowing. An Obama administration is likely to take a more balanced approach to employment law, a good portion of which is administered by federal agencies.