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The legal culture has recently propagated a new genus — the mass tort subrogation action — in which an entity that has incurred costs on behalf of a tort victim seeks to recover those costs from the tortfeasor. Government agencies are the plaintiffs in the most notorious of these cases, but some have also been brought by health and welfare pension funds, insurers, tort victim compensation trusts, and other entities. Although the law of mass tort subrogation is still in flux, we already know enough to predict that this latest creature spells trouble for the legal system and not just for the defendants. It is costly to entertain even when it is unavailing. It all began in the mid-1990s, when a number of entrepreneurial private and government lawyers convinced state politicians to sue the tobacco industry. The plaintiffs advanced a number of legal theories, but almost all of them relied directly or indirectly on the fact that the state governments, through their Medicaid and other programs, had taken an enormous fiscal hit in providing health and disability benefits to smokers, and that these costs were caused by the industry’s fraud and other intentional and unintentional wrongdoing. Eventually, all of the states joined this litigation, and, after an earlier settlement fell apart, they finally came to terms with the industry in 1997 for a total of $246 billion to be paid out over 25 years. These cases were only the beginning. Slow off the mark for tactical reasons, the Clinton administration sued the industry under a similar theory several years ago. Because the settlement in the state cases did not bar individual and class actions by nonstate plaintiffs, a number of these were brought. The results of a few of them have been stunning. In March, Brown & Williamson Tobacco Corp. paid a $750,000 judgment to a smoker pursuant to a jury verdict — the first time this had ever happened. But another jury dropped a nuclear bomb in the Engle v. R.J. Reynolds class action, now under appeal, when it rendered a $145 billion award against five tobacco companies. In the wake of Big Tobacco’s settlement with the states, a number of union pension funds and insurers sued the industry, invoking subrogation theories. In addition, Owens Corning and the trust created in 1988 by the court administering the Johns-Manville bankruptcy sued the industry under a similar theory, seeking to recover amounts they had previously paid to asbestos victims who had been smokers. States and cities have brought other subrogation claims against manufacturers of lead-based paint for health-care and cleanup costs. Although the courts have allowed some of these subrogation claims (e.g., Rhode Island’s lead paint case) to proceed, they have dismissed most of them — usually on the ground that the government’s financial harm is too remote from the tortious conduct. The big exception is U.S. district court judge Jack Weinstein in the Eastern District of New York, who refused to dismiss the claims in either the Manville Trust case (now dropped by the plaintiffs) or the union pension fund cases. (Although these claims have been rejected by all circuits, including Weinstein’s own 2nd Circuit, he allowed a jury on June 4 to award Empire Blue Cross $17.8 million against tobacco companies.) Because these claims usually allege not only common-law tort damages but RICO violations subject to treble damages, a lot rides on their outcomes. This brings us to the most tenuous mass tort subrogation claims of all — those against the gun manufacturers. Emboldened by the success of the state tobacco cases, at least 32 cities and New York state have sued dozens of gun manufacturers. They hope to recover crime-related expenditures supposedly linked to unlawful gun use, and in some cases to recover health and disability outlays as well, while avoiding the shoals that have wrecked most subrogation cases. The manufacturers, government plaintiffs say, use distribution systems that make it easy for criminals to buy guns. Some also claim that such systems constitute a public nuisance. Some of these theories are plausible, others are fanciful. The gun litigation has been showcased by the Hamilton v. Beretta case, which was brought (not coincidentally) in Judge Weinstein’s court in Brooklyn early in 1995. Although not itself a subrogation case — the plaintiffs, who are relatives of people killed by handguns, are conventional wrongful death claimants — Hamilton has developed most of the substantive theories that the government plaintiffs in the subrogation cases have been invoking. For this reason, it merits attention. In Hamilton, the plaintiffs sued numerous manufacturers under a variety of theories, alleging that the guns used in the killings were negligently and fraudulently marketed and defectively designed, and that manufacturing them was an “ultrahazardous” activity, for which the producers were strictly liable. Judge Weinstein dismissed the product liability and fraud claims, and seven plaintiffs — including Stephen Fox, a surviving but permanently disabled handgun victim — proceeded to trial against 25 manufacturers on the negligent marketing theory. This theory asserted that the manufacturers had distributed their products so carelessly as to create and bolster an illegal, underground market, enabling minors and criminals to obtain the guns that killed (or in Fox’s case, injured) the plaintiffs. The identities of the manufacturers were unknown because only one of the guns was recovered. Nevertheless, Judge Weinstein allowed plaintiffs to use a “market share” theory, adopted during the 1980s litigation over DES, the carcinogenic antimiscarriage drug. Under this theory, all of the manufacturers of a fungible product could be held liable for these negligent practices. After a four-week trial in 1999, the jury found 15 manufacturers liable for negligent distribution and awarded Fox almost $4 million, to be apportioned on a market share basis among three of them. The manufacturers appealed to the 2nd U.S. Circuit Court of Appeals, which then certified two questions to the New York Court of Appeals, the state’s highest court: whether the manufacturers owed plaintiffs a duty to avoid negligent marketing and distribution of the guns, and, if so, whether and how the market share allocation theory applied in this case. This spring, the state court of appeals unanimously answered these questions in the negative; it rejected Fox’s claims and sent the case back to the 2nd Circuit, presumably ending it. The court did, however, leave open a possible claim in future cases against manufacturers who had reason to know that particular distributors consistently supply guns to the illegal market — and perhaps those that willfully avert their eyes. With that sensible caveat, dismissal was the correct decision in Hamilton, and the California Supreme Court has just dismissed a similar claim. Judge Weinstein wasted more than six years of the parties’ and courts’ time and money by nurturing this case and thus encouraging lawyers to file others like it. This waste will increase as cities and states struggle vainly to distinguish Hamilton in a desperate attempt to justify their (taxpayers’) litigation investments. These claims are losers for many reasons — doctrine, fairness, institutional competence, public policy, and politics. As the Palsgraf case teaches every first-year law student, tort plaintiffs must establish that the defendant owes a legal duty to the plaintiff. Is a gun manufacturer under a legal duty to protect all victims of criminals who intentionally misuse its product? Begin with the fact that the gun is not defective in any conventional sense (would that it were), so traditional strict product liability does not apply. In addition, the courts have rejected any duty to protect strangers unless the defendant has a “special relationship” with either the injurer or the victim, a relationship that also places the defendant in a good position to prevent the harm. The leading “special relationship” case, Tarasoff v. Regents of University of California, has been widely criticized and limited on the ground that it extends duty too far. There, the California Supreme Court imposed a duty on a psychiatrist to take reasonable steps to protect a named individual whom his patient had threatened to kill. In the gun cases, by contrast, the possible victims are both numerous and nameless insofar as the manufacturer is concerned. Judge Weinstein tried to circumvent this problem, however, by ruling that manufacturers could control the sales practices of downstream sellers and thus had a duty to entrust the guns only to distributors and retailers who would sell them to responsible buyers. This entrustment liability, however, is premised on a level of knowledge about specific risks posed by specific users that the gun manufacturers lack and could only acquire at great cost. Even if gun plaintiffs could overcome these hurdles, they would have to prove that the negligent entrustment actually and proximately caused plaintiffs’ harms — obstacles magnified in the subrogation cases, where the cities’ claims are even more indirect. How could they do so? There are many links in the causal chain between a manufacturer’s sale of a gun to a wholesale distributor and the gun’s use by the criminal, and the manufacturer controls few if any of them. An estimated half-million guns are stolen each year, and many of these are presumably used by criminals. Other guns are purchased after they have passed through many hands, sometimes including those of legitimate gun owners. Fairness considerations also militate against liability for a manufacturer that lacks specific knowledge about downstream transfers. Guns, after all, are a legal product with social value when used properly. In addition to having many legitimate uses including sporting and private collecting, guns may deter many criminals who fear that their victims are armed. One can easily sympathize with victims whose assailants are judgment-proof, but why should a manufacturer of a socially desired product have to pay for a crime that it could not foresee or control, committed by a criminal it could not identify — especially when it may not even have manufactured the gun in question? Fairness dictates that if anyone should pay — an open question — it should be the local government that failed to prevent the crime or the federal government that extensively regulates and licenses gun dealers for this very purpose. (The potential government exposure creates a special irony in the cases where cities are plaintiffs.) Which institution — the court or the legislature — is best equipped to resolve the problem of gun-related injuries? The doctrinal problems only hint at the difficulties that courts face in dealing with these cases. Causal proof on how guns come into the possession of criminals and on the costs and benefits of various control alternatives depends on the careful analysis of social-science data that does not yet exist and that obviously will be difficult to obtain. When the gun cannot be recovered, as is often the case, courts cannot determine which of the many manufacturers produced it; nor can they use the market share liability theory that has enabled them to finesse this question in the DES cases, where the products in question were fungible. Legislatures, the gun plaintiffs contend, play politics with the gun issue and cannot be relied upon to enact adequate controls; thus the courts must intervene if the problem is to be solved. But this, of course, begs the very questions at issue: whether judges should be the engineers of gun control policy, and whether tort liability is an effective policy instrument in this area. The answers to both questions are plainly no. Gun control is not a stealth issue. It is a highly visible one in which interests from all sides have engaged. Politicians at all levels of government are obliged to address it. Voters are manifestly capable of holding them accountable in ways that, for sound constitutional reasons, do not apply to life-tenured judges such as Weinstein. We live in a polity that values individual freedom, has a long and respected tradition of private gun ownership, and delegates much of the policymaking responsibility in this area to the 50 states. More than 250 million guns are already in circulation and easily accessible by criminals. No consensus yet exists on how to reconcile the competing values of individual freedom, public safety, and regulatory costs, nor is there agreement on how legal and moral responsibility should be divided among the gun manufacturers, distributors, retailers, buyers, and criminals. Many of the empirical issues on which a sound policy depends remain murky — for example, the effectiveness of different control strategies, the possible deterrent value of guns, the possibilities of proposed technological fixes, and the cost-absorbing capacities of a fragmented and declining industry that bears little resemblance to Big Tobacco. Under these conditions, it is not at all obvious what the best solutions are — or indeed that there is any solution other than better crime control and perhaps social insurance of crime victims’ injuries. What seems clear is that tort law — devised by generalist judges, deployed by government plaintiffs, and applied by lay juries with neither technical expertise nor public accountability — is one of the last places we can expect to solve this vitally important puzzle. Peter H. Schuck is the Simeon E. Baldwin Professor at Yale Law School, and the author most recently of “The Limits of Law: Essays on Democratic Governance” (Westview, 2000).

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