SUPREME COURT SET TO ENTER TORT BATTLEGROUND
January 10, 2005 08:56

As the White House and Congress gear up for yet another run at tort "reform," two cases set for argument at the Supreme Court underline the crucial role the justices also play in the policy debate over how much litigation is too much. While legislative efforts to limit lawsuits have mostly fizzled in recent years, the Supreme Court has arguably done more in the field than either of the elected branches by cutting back on punitive damages and restricting, at least modestly, class actions. The justices will have the final word on whatever measures, if any, Congress does pass, in their classic role of statutory interpretation. The two cases, one a closely watched securities fraud class action and the other involving liability for pesticide makers, both involve laws that were aimed, at least in part, at protecting key industries from excessive litigation. The Court is being called on to interpret ambiguous wording in the statutes that could lead, ironically, to significantly more tort lawsuits, not fewer. Parties in both cases have enlisted top-tier lawyers to do battle. In the pesticide case Bates v. Dow Agrosciences, heavy hitters David Frederick of Washington, D.C.'s Kellogg, Huber, Hansen, Todd, Evans & Figel, will square off against former Solicitor General Seth Waxman of Wilmer Cutler Pickering Hale and Dorr. Frederick represents Texas peanut farmers harmed by a pesticide made by Waxman's client, Dow. Waxman will argue that a federal law that regulates pesticides pre-empts state tort actions, but Frederick calls that argument "the latest effort by manufacturers to evade liability for their defective products through a sweeping pre-emption argument." Dura Pharmaceuticals Inc. v. Broudo could determine the future course of shareholder fraud-on-the-market actions against corporations. "The biggest securities litigation case in a decade" is how William Sullivan of Paul, Hastings, Janofsky & Walker in San Diego describes the case.

***** Tony Mauro, Legal Times, Law.com, 01/10/2005 For complete story, search http://www.law.com $ - Only subscribers can access this article *****