APL-2014-00261
Erie County Clerk's Index No. 12010-12499
Appellate Division, Fourth Department Docket No. CA-13-01373
Q!nurt nf Appeals
nf tqe
&;fate nf New lJnrk
~~~__. .. .__~~~
JOANN H. SUTTNER, as Executrix of the Estate of GERALD W. SUTTNER,
Deceased, and Individually as the Surviving Spouse of GERALD W. SUTTNER,
Plaintiff-Respondent,
- against-
A.W. CHESTERTON, et al.,
Defendants,
CRANE CO.,
Defendant-Appellant.
BRIEF OF AMICUS CURIAE OF THE CHAMBER OF
COMMERCE OF THE UNITED STATES OF AMERICA IN
SUPPORT OF DEFENDANT-APPELLANT CRANE CO.
PROFESSOR JAMES A. HENDERSON, JR.
Frank B. Ingersoll Professor of Law
CORNELL LAW SCHOOL
Of Counsel (Pro Hae Vice Pending)
for Amicus Curiae The United States
Chamber of Commerce
Ithaca, New York 14853
Tel.: (607) 255-2303
Fax: (607) 255-7193
Date: March 18, 2016
MICHAEL H. PARK
CONSOVOY MCCARTHY PARK PLLC
Attorneys for Amicus Curiae
The United States Chamber
of Commerce
3 Columbus Circle, 15th Floor
New York, New York 10019
Tel.: (212) 247-8006
CORPORATE DISCLOSURE STATEMENT
Pursuant to Court of Appeals Rule 500.l(f), amicus curiae the Chamber of
Commerce of the United States of America states that it is a non-profit
membership organization, with no parent company and no publicly traded stock.
11
TABLE OF CONTENTS
Page
QUESTION PRESENTED ....................................................................................... 1
INTEREST OF AMICUS CURIAE ........................................................................... 1
STATEMENT OF THE CASE ................................................................................. 2
ARGUMENT ............................................................................................................ 2
I. INTRODUCTION ........................................................................................... 2
II. PLAINTIFF'S OPEN-ENDED, RESCUE-BASED APPROACH
REPRESENTS A DEPARTURE FROM MAINSTREAM
PRODUCTS LIABILITY TRADITION ........................................................ 3
A. The Traditional, Mainstream Products Liability Rule Governing
a Manufacturer's Duty to Warn, Set Forth in the Restatement of
Products Liability, Consists of Three Functional Elements ................. 3
B. Plaintiffs Proposed Approach to Product Warnings Eliminates
the Third Element of the Traditional Rule, Thereby Condoning
Vaguely-Formulated, Open-Ended Responsibilities that
Approach General Duties to Rescue ..................................................... 5
III. PLAINTIFF'S SUGGESTED DEPARTURE FROM TRADITION IS
BOTH UNFAIR AND DETRIMENTAL TO SOCIAL WELFARE ........... 13
A. Judicial Policy Analyses Are Necessary in Connection with
Proposals for Change .......................................................................... 13
B. The Social Policy Objectives of American Tort and Products
Liability Law: Two Major Perspectives Dominate ........................... 14
C. Social Welfare Principles Support the Traditional Failure-to-
Warn Rule Relied on by Crane Co. But They Do Not Support
Plaintiffs Alternative, Open-Ended Approach .................................. 15
D. Fairness Principles Support the Traditional Failure-to-Warn
Rule Relied on by Crane Co. But They Do Not Support
Plaintiffs Alternative Open-Ended Approach ................................... 18
111
IV. NEARLY-UNIVERSAL DECISION PATTERNS IN TORT
INDICATE THAT PLAINTIFF'S UNANCHORED, RESCUE-
BASED DUTY TO WARN REFLECTS BAD SOCIAL POLICY ............. 20
A. The Patterns That Follow Reveal That Plaintiffs Approach Is
Out of Step With Deep Rhythms in American Tort Law and
Social Policy and Thus Constitute Strong Circumstantial
Evidence That Plaintiffs Proposal Reflects Bad Social Policy ......... 20
B. Traditional Examples, Drawn From Outside the Products
Liability System, Place Workable Boundaries on Rules of
Recovery and Duties of Care .............................................................. 21
C. Traditional Examples, Drawn from Within the Products
Liability System, That Place Workable Boundaries on Rules of
Recovery and Duties of Care .............................................................. 27
V. CONCLUSION ............................................................................................. 32
IV
TABLE OF CITATIONS
Page(s)
Cases
522 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.,
750 N.E.2d 1098 (N.Y. 2001) ............................................................................ 22
Barber Lines A/S v. M/V Donau Maru,
764 F.2d 50 (1st Cir. 1985) .......................................................................... 22, 23
Broussard v. Continental Oil Co.,
433 So. 2d 354 (La. App. 1983),
cert. denied, 440 So. 2d 726 (La. 1983) ....................................................... 11, 12
Caronia v. Philip Morris US.A., Inc.,
5 N.E.3d 11 (N.Y. 2013) .................................................................................... 25
Hamilton v. Beretta US.A. Corp.,
750N.E.2d 1055 (N.Y. 2001) ........................................................... 6, 14, 20, 26
Kennedy v. McKesson Co.,
448 N.E.2d 1332 (N.Y. 1983) ............................................................................ 24
Rastelli v. Goodyear Tire & Rubber Co.,
591N.E.2d222 (N.Y. 1992) ................................................................................ 8
Sage v. Fairchild-Swearingen Corp.,
70 N.Y.2d 579 (1987) ...................................................................................... 7, 8
Other Authorities
Guido Calabresi, The Costs of Accidents (1970) ...................................................... 4
Howard Latin, "Good" Warnings, Bad Products, and Cognitive
Limitations, 41 U.C.L.A. L. Rev. 1193 (1994) .................................................... 4
James A. Henderson, Jr. et. al., The Torts Process (8th ed. 2012) .......... 5, 14, 22, 28
James A. Henderson, Jr., Process Constraints in Tort,
67 Cornell L. Rev. 901 (1982) ....................................................................... 5, 19
v
James A. Henderson, Jr., Requiring Sellers of Safe Products to Rescue
Users From Risks Presented by Other, More Dangerous Products .................... 8
Louis Kaplow & Steven Shavel, Fairness versus Welfare (2002) .......................... 14
Restatement of Products Liability § 10 ....................................................... 15, 17, 30
Restatement, Third, of Torts: Products Liability § 14 (1998) ................................ 31
Restatement, Third, of Torts: Products Liability§ 2 (1998) ............................ 3, 4, 5
Restatement, Third, of Torts: Products Liability§ 5 (1998) .................................. 28
Restatement, Third, of Torts: Liability for Physical and
Emotional Harm§ 37 (2010) ......................................................................... 5, 21
VI
QUESTION PRESENTED
In light of widely-recognized principles of fairness and social welfare and a
host of traditional decision patterns in American tort law, is it not clear that a
manufacturer is under no obligation, morally or legally, to warn of risks presented
by products entirely designed, manufactured, distributed, and controlled by others?
INTEREST OF AMICUS CURIAE
The Chamber of Commerce of the United States of America ("Chamber") is
the world's largest business organization representing 300,000 direct members and
indirectly representing the interests of more than three million businesses of every
size, in every sector, and from every region of the country. An important function
of the Chamber is to represent the interests of its members in matters before
Congress, the Executive Branch, and the courts. The Chamber frequently
participates as an amicus curiae in cases raising issues of concern to the Nation's
business community, such as this one.
Appellant here asks this Court to upend well-settled tort and products
liability law, a subject of great practical significance to the Chamber's members,
and a subject of particular expertise of the co-author of this amicus brief, James A.
Henderson, Jr., Professor Emeritus at the Cornell Law School. Over a fifty-year
career, he has published numerous books and law review articles on the subjects of
1
tort and products liability law. He also served as Co-Reporter for the Restatement,
Third, of Torts: Products Liability (1998) and, since 2008, he has served as
Special Master to U.S. District Judge Alvin K. Hellerstein in the New York World
Trade Center Disaster Litigation.
STATEMENT OF THE CASE
Amicus adopts Appellant's statement of the case, to the extent relevant to
Amicus's arguments.
ARGUMENT
I. INTRODUCTION
The briefs of Appellant Crane Co. and their supporting Amici demonstrate
convincingly that Crane Co. 's position is supported by precedent. Rather than
repeat those arguments in this brief, Amicus will show that Crane Co. is also
supported by widely-recognized normative principles of fairness and social welfare
and is consistent with decisional patterns running broadly and deeply through
American tort and products liability law. Because the substantive issue in this case
concerns the possible adoption by this Court of Plaintiffs nontraditional approach
to product manufacturers' duties to warn, considerations of policy are especially
important. Amicus cites cases and Restatement provisions in what follows, but
2
only to show that its nonnative conclusions are consistent thematically with
mainstream American jurisprudence.
II. PLAINTIFF'S OPEN-ENDED, RESCUE-BASED APPROACH
REPRESENTS A DEPARTURE FROM MAINSTREAM PRODUCTS
LIABILITY TRADITION
A. The Traditional, Mainstream Products Liability Rule Governing
a Manufacturer's Duty to Warn, Set Forth in the Restatement of
Products Liability, Consists of Three Functional Elements
The traditional rule governing a manufacturer's duty to warn consists of
three functional elements: (1) the existence of product-related risks that, while not
obvious to users, are knowable and foreseeable by the manufacturer; 1 (2) the
existence of an opportunity for the manufacturer to warn product users and others
who are in positions effectively to reduce or eliminate those risks;2 and (3) the fact
that the manufacturer designed, manufactured, or otherwise controlled the
dangerous aspects of the product about which warnings are allegedly owed.3 The
1 See Restatement, Third, of Torts: Products Liability § 2( c ), cmt. a (1998) ("Most
courts agree that, for the liability system to be fair and efficient, the balancing of
risks and benefits in judging product . . . marketing must be done in light of the
knowledge of risks ... reasonably available at the time of distribution").
2 See id. § 2( c ), cmt. i ("Depending on the circumstances, Subsection ( c) may
require that warnings be given not only to purchasers, users, and consumers but
also to others ... who will be in a position to reduce or avoid the risk of harm.").
3 See id. § 2( c) ("a product ... is defective [for lack of warnings] ... when the ...
risks of harm posed by the product could have been reduced or avoided by the
provision of reasonable . . . warnings . . . and the omission of the . . . warnings
renders the product not reasonably safe.").
3
first two elements-knowledge of the relevant risks and opportunities to act
effectively on that knowledge-are characteristics that cost-avoiders of all
stripes-including rescuers of strangers-must possess to be effective.4 The third
element performs an anchoring function, connecting the concept of effective cost-
avoidance, which has many other tort applications, with the narrower subject of a
manufacturer's duty to warn of dangerous products.5 Under traditional American
products liability jurisprudence, a manufacturer must see to it that the design and
marketing of its products are nondefective. 6 This means that the manufacturer
must see to it that its products, at least generically, are reasonably safe. 7 The
requirement that the duty to warn must be anchored to the risks that the
manufacturer's own product presents is the element that prevents the duty from
4 See Guido Calabresi, The Costs of Accidents 135 (1970) ("[Social welfare]
would require allocation of accident costs to those acts or activities (or
combination of them) which could avoid the accident costs most cheaply."). See
generally Howard Latin, "Good" Warnings, Bad Products, and Cognitive
Limitations, 41 U.C.L.A. L. Rev. 1193, 1195 (1994) ("Product warnings ... can be
effective only when intended recipients [i.e., cost avoiders] are able to receive,
comprehend, and act upon the information imparted.").
5 See supra note 3. The italicized portion of § 2(c) in note 3 performs the
anchoring function. A manufacturer owes a duty to warn of the risks generated by,
and only by, the manufacturer's own products.
6 This is true regarding design and warning claims, which are functionally
equivalent to negligence claims. See Products Liability Restatement § 2, cmt. a.
7 Section 2( c) of the Products Liability Restatement requires that failures to warn
must render products "not reasonably safe." It is reasonable to conclude that a
rational distributor's objective, given this prerequisite to liability, would be to warn
adequately, thereby rendering the marketing reasonably safe.
4
expanding into the functional equivalent of a general duty to rescue strangers from
risks that do not originate with the distributor's product.8 Without the anchoring
element, a kitchen knife manufacturer could be required to warn against the
possibility that food prepared with the knife is spoiled, or that the kitchen floor
might be slippery. Discussions that follow rely on further examples to explain why
the third element of the traditional formulation of the duty to warn is a vital
prerequisite of that duty, anchoring the concept of product warnings to principles
of welfare, fairness, and common sense.
B. Plaintifrs Proposed Approach to Product Warnings Eliminates
the Third Element of the Traditional Rule, Thereby Condoning
Vaguely-Formulated, Open-Ended Responsibilities that Approach
General Duties to Rescue
As indicated, the third element of the traditional rule governing failure to
warn-that to owe a duty to warn the defendant must have designed,
manufactured, distributed, or otherwise controlled the dangerous aspects of the
product or other environmental agent that caused the plaintiffs harm-establishes
8 For a recent treatment of the duty to rescue, see James A. Henderson, Jr., et. al.,
The Torts Process 244-272 (8th ed. 2012). Section 37 of the Restatement, Third, of
Torts: Liability for Physical and Emotional Harm (2010) rejects a general duty to
rescue on the part of actors who have not created risks of harm to those requiring
rescue, subject to specific exceptions not relevant in the instant case. Chief among
the exceptions are the fact that the potential rescuer's conduct caused the other to
require rescue and the existence of a preexisting relationship between the potential
rescuer and the one requiring rescue. See Henderson, supra, at 244.
5
common-sense limits that prevent a product manufacturer's responsibility
regarding warnings from approaching a wide-open duty to rescue. To try to
support Crane Co. 's liability in this case, Plaintiff urges this Court to eliminate the
anchoring element and transform the traditional liability rule into one of
exceptional open-endedness.9 Discussions that follow in Part III consider the
welfare and fairness implications of Plaintiffs open-ended rescue-like approach.
For now, it will be useful to describe the sorts of fact patterns that, although clearly
rejected by the traditional rule, would arguably support liability under Plaintiffs
more open-ended approach.
Before considering hypothetical fact patterns, it will assist understanding to
eliminate several red herrings introduced by Plaintiff. First, when a manufacturer's
product contains a defectively-designed component part that subsequently must be
replaced with an identically-designed component part manufactured by another
9 This Court rejected such an attempt by the plaintiffs in Hamilton v. Beretta US.A.
Corp., 750 N.E.2d 1055 (N.Y. 2001). For further discussion of the case, see infra
note 63 and text accompanying. Although plaintiffs did not even allege that the
defendants' guns were defective, plaintiffs claimed that defendants negligently
marketed their guns, eventually leading to harm to victims of gun violence. The
two elemental allegations, absent the third anchoring element, were: first,
defendants' general knowledge that large numbers of their guns enter the illegal
market and are used in crime; and second, defendants' ability to exercise control
over the marketing and distribution of their guns. Referring to the potentially
limitless liability that would follow from plaintiffs' approach, this Court rejected
plaintiffs' attempt to ignore the anchoring element. See infra note 64 and
accompanying text.
6
distributor and the defective aspect of the replacement component's design
subsequently causes harm, the original manufacturer is properly held liable for the
defective aspect because the original manufacturer created the design of the later-
installed replacement part. 10 Plaintiff wrongly insists that this is an example of the
original manufacturer being held liable for the later distributor's design defect. 11
In truth, it is an example of the original manufacturer being held/or its own design
defect. Thus, Plaintiffs insistence that the first manufacturer is being held for the
second manufacturer's defective product, is flat out wrong. The earlier decision by
this Court imposing design liability on the facts just stated 12 represents, instead, an
application of this Court's traditional rule.
Plaintiff is equally in error when he asserts in his brief that the instant case
involves synergism between Crane Co.' s valves and the asbestos-containing
gaskets distributed by others and introduced by GM, the manager of the
10 Note that the original manufacturer did not manufacture the replacement door;
but it designed the door, thereby supplying the anchoring element and justifying
liability under the traditional rule.
11 See Brief for Plaintiff-Respondent at 4: "Sage [the case described in the text]
explicitly found that a manufacturer could be liable for injuries arising from a
[design] defect associated with a replacement that it did not control, distribute or
otherwise directly interact with." For Plaintiffs more extended discussion see id.
at 45-49.
12 Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579 (1987).
7
environment in which the valves functioned as components. 13 Synergism occurs
when a combination of different products presents a total level of risk that is
greater than the sum of the risks that each product presents separately from the
other. 14 When synergism occurs, each of the contributing products is a concurrent
cause of the plaintiffs harm. 15 However, in the instant case, it is indisputable that
Crane Co.' s valves did not generate the heat that caused the asbestos in the other
distributors' gaskets to become dangerously friable. GM's system did that,
independently of Crane Co.'s valves. Although New York failure-to-warn
jurisprudence recognizes synergism as a basis of liability, 16 the record in this case
makes it indisputably clear that synergism between Crane Co.'s bare-metal valves
and the asbestos-containing gaskets produced, distributed and controlled by others
did not occur. 17
13 See Brief for Plaintiff-Respondent at 49-55.
14 See generally James A. Henderson, Jr., Requiring Sellers of Safe Products to
Rescue Users From Risks Presented by Other, More Dangerous Products, 37 Sw.
L. Rev. 595 (2008).
15 See, e.g., Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 225-226
(N.Y. 1992) (acknowledging that where the combination of one sound product
with another sound product creates a dangerous situation, the
manufacturers/distributors of both products have a duty to warn).
16 Id.
17 For factual support for this conclusion see Rely Brief for Appellant at 9-10.
8
Consider now the sorts of liability claims that Plaintiffs nontraditional,
open-ended approach would generate. Regarding friable asbestos, the
manufacturers and distributors of a limitless number of products used in proximity
to asbestos-containing systems similar to GM's system in the instant case would
presumably be required to warn a large number of downstream users and
bystanders. Those exposed to liability would potentially include the distributors of
all the components in such systems, including piping, pipe hangers, nuts, bolts,
washers, clamps, gauges, and virtually limitless examples of otherwise
nondefective products attached to or used in connection with other asbestos-
containing products. 18 There is no principled basis for limiting application of
Plaintiffs open-ended approach to asbestos. Thus, asbestos may be the product
area where tort plaintiffs most need new industrial defendants to pay for their
injuries; 19 but Plaintiffs expanded approach would apply to countless other
products. For example, manufacturers of swimwear would presumably be required
to warn of dangerous modes of water sports not otherwise obvious;20
manufacturers of workplace apparel might well be required to warn of dangers in
18 For a real-life example of what could develop see infra notes 28-32 and text
accompanymg.
19 Amicus does not mean to impugn Plaintiffs motives in this regard. Members of
the plaintiffs' bar owe a duty to pursue every plausible possibility on behalf of
their clients. But in considering questions of social policy, this Court must keep its
eyes open to the realities. For a factual summary see Brief of Amici at 1-6.
2° For variations on the swimwear hypothetical see supra note 14.
9
work environments including the nonobvious dangers presented by power
equipment;21 and distributors of matches and lighters would presumably be
required to warn of the hidden risks of smoking.22
Is it an adequate response to these difficulties to insist that, while the claims
would in most instances reach the jury, excessive liability would be avoided by
instructing jurors to find for the defendant if they find that the relevant risks were
not reasonably foreseeable? Such a response would miss the mark for several
reasons. First, courts have held that when a product distributor is threatened with
potentially limitless liability, it can be protected adequately only by a liability rule
that affords protection in appropriate cases as a matter of law.23 An open-ended
approach to legal duty that sends claims to the jury on vague reasonableness
instructions unfairly exposes actors to open-ended, potentially limitless liability.
And second, such a vaguely formulated duty would force manufacturers to
investigate expansively and to supply redundant, arguably useless warnings in
many instances, thereby reducing rather than enhancing social welfare. It follows
that if the duty to warn in the instant context is to avoid potentially limitless
21 For an example of such a warning actually proposed by a plaintiff see infra notes
25-28 and text accompanying.
22 Manufacturers of ash trays would similarly owe such a duty to warn, as would
manufacturers of coffee cups and saucers, which, under Plaintiffs proposed
approach, would be foreseeable substitutes for ash trays.
23 See infra notes 53-55 and accompanying text.
10
liability, it must do so by anchoring that duty to risks presented by the
manufacturer's own products.
At this point, one might be tempted to criticize the author of this Amicus
brief for having an overactive imagination. But if Plaintiff were to convince this
Court to eliminate the limiting, anchoring third element of the traditional rule
regarding manufacturers' duties to warn, these arguably absurd examples would be
virtually certain to arise. That such an assessment is realistic is suggested by a
Louisiana decision involving a hand-held electric drill, the hidden internal sparks
of which triggered an explosion when used in a confined, gas-filled area.24 The
plaintiff argued that the manufacturer should have attached a warning of the risks
of explosion on the drill itself. The manufacturer included such warning in the
owner's manual, but did not attach it to the drill itself. The plaintiffs main
difficulty was to show how an adequate warning could have been designed to reach
remote users in the field. Perhaps believing that he would appear excessively
result-oriented to suggest that the manufacturer should have warned only of
explosions, the result that caused his harm, the plaintiff argued that a tag attached
to the drill should have warned of at least ten important risks. These proposed
warnings included:
24 See Broussard v. Continental Oil Co., 433 So. 2d 354 (La. App. 1983), cert.
denied, 440 So. 2d 726 (La. 1983).
11
Don't abuse cord; Wear proper apparel; Don't use in damp areas; Use proper
extension cords outdoors; Don't touch metal parts when drilling near any
electrical wiring; Remove tightening key; Unplug to change bits; Use safety
glasses; Avoid gaseous areas; Secure work.25
The verdict and judgment at trial were for the manufacturer. Affirming that
outcome, the appellate court concluded "We are not impressed with plaintiffs [list
of suggested warnings. ]"26 The court reasoned that limiting plaintiffs proposal to
only ten warnings was essentially arbitrary; that even ten warnings would be
confusing and would be more than users could deal with effectively; and that the
suggested warning about the risk of explosion-" A void gaseous areas"-was too
abbreviated and was thus inadequate. 27 The court concluded that, given these
difficulties, the only alternative was to include an adequate warning in the owner's
manual, which presumably the defendant had done. Amicus offers this Louisiana
decision as a real-life illustration of the sorts of difficulties that courts would
routinely confront if manufacturers were forced to respond to the open-ended
failure-to-warn approach urged by Plaintiff in the instant case. The decision also
suggests the sorts of expansive warnings-e.g., "wear proper apparel," "use proper
extension cords outdoors"-that could be expected under Plaintiffs approach.
25 See 433 So. 2d at 358.
26 Id.
21 Id.
12
III. PLAINTIFF'S SUGGESTED DEPARTURE FROM TRADITION IS
BOTH UNFAIR AND DETRIMENTAL TO SOCIAL WELFARE
A. Judicial Policy Analyses Are Necessary in Connection with
Proposals for Change
Crane Co.'s briefs respectfully but correctly criticize the decision of the
Appellate Division in this case for failing to mention, let alone review, the policy
reasons supporting its rejection of the limits built into the traditional failure-to-
warn rule.28 In response, Plaintiff concedes that policy considerations should
accompany proposals for change, but insists that the radically open-ended rule
Plaintiff advocates represents tradition and therefore the court below, agreeing with
tradition, was not required to consider underlying social policies. 29 Plaintiff is
clearly wrong on at least two counts: First, Plaintiff, not Crane Co., is the party
urging a nontraditional, unanchored duty to warn; and second, courts confronting
disputes over existing law should address policy implications regardless of which
side is seeking change. In the discussions that follow, Amicus addresses the
important policy issues that Plaintiffs Brief dismisses as irrelevant.
28 See Appellant's Brief at 22-26.
29 See Plaintiffs Brief at 106.
13
B. The Social Policy Objectives of American Tort and Products
Liability Law: Two Major Perspectives Dominate
By nearly unanimous consent, American tort law serves two important
policy objectives: increasing social welfare, or allocative efficiency, and achieving
fairness, or corrective justice. 30 The first of these objectives is instrumental in
nature; the threat of tort liability strengthens incentives for actors to invest
optimally in precautions, thereby avoiding unnecessary accidents and achieving
optimal levels of risky activities. 31 The second objective of tort is noninstrumental;
courts seek to achieve fairness not as means to external welfare ends, but as
internal ends in themselves. 32 Although some legal scholars insist that one or the
other of these objectives must dominate,33 New York decisions recognize both as
30 See generally Louis Kaplow & Steven Shavel, Fairness versus Welfare xvii
(2002) (Innovations of fairness and justice are the norm in the legal academy.) See
also Hamilton v. Baretta U.S.A. Corp., supra note 9, 750 N.E.2d at 1061
("[J]udicial resistance to the expansion of duty grows out of practical concerns
both about potentially limitless liability and about the unfairness of imposing
liability for the acts of another.").
31 Regarding the objective of avoiding wasteful accidents, see James A. Henderson,
Jr., The Torts Process 35-36 (8th ed. 2012); regarding the objective of achieving
optimal levels of risky activities see id. at 473-474.
32 See Kaplow & Shavell, supra note 30 at 38-45.
33 For the view that corrective justice prevails whenever its principles conflict with
principles of social welfare, see Ernest J. Weinrib, Deterrence and Corrective
Justice, 50 U.C.L.A. L. Rev. 621 (2002). For the view that principles of social
welfare prevail, see generally Kaplow & Shavell, supra note 30.
14
legitimate. 34 The discussions that follow make clear that neither social welfare nor
fairness principles support Plaintiffs nontraditional, unanchored approach to a
manufacturer's failure to warn.
C. Social Welfare Principles Support the Traditional Failure-to-
Warn Rule Relied on by Crane Co. But They Do Not Support
Plaintifrs Alternative, Open-Ended Approach
As indicated, whether or not a proposed liability rule will enhance public
welfare is a primary consideration whenever courts decide whether to expand
actors' responsibilities beyond traditional limits. Important considerations in
gauging a warning-based liability rule's potential for deterring wasteful conduct
are whether: (1) reasonable manufacturers would be able to determine the
existence, nature, and seriousness of the risks to product users in the field;35 (2)
reasonable manufacturers could identify those at risk and could reasonably assume
that users are unaware of the risks;36 (3) reasonable manufacturers could reach
remote users with adequate warnings and, upon receiving the warnings, users could
act effectively to reduce or avoid those risks;37 and ( 4) typically the risks are
34 See supra note 30 and text accompanying.
35 See Restatement of Products Liability § 1 O(b )(1 ), relating t9 post-sale duties to
warn. This provision, together with the three that follow, help courts to respond to
motions regarding which claim should reach the jury. As Comment a makes clear,
courts should carefully examine and assess the adequacy of plaintiffs proof.
36 See Restatement of Products Liability § 1 O(b )(2).
37 Id. § 10(b)(3).
15
sufficiently great to justify the significant burdens of providing such a warning. 38
Under the traditional rules governing manufacturers' duties to warn of the risks
presented by their own products, all of these considerations are likely to support
liability in appropriate cases. Thus, a reasonable manufacturer presumably would
know the risks presented by its own product, and could at low cost identify the
persons at risk. And a reasonable manufacturer could relatively easily gauge the
need for, and likely effectiveness of, warnings about its own products. Because
users to whom warnings would be given are typically purchasers of the
manufacturer's own products, reaching such users at time of distribution would
likely be feasible and presumably could be accomplished at relatively low cost.
Moreover, on the assumption that product warnings in many cases are likely to
generate significant savings in accident costs, reasonable warnings are likely to be
worth making. Thus, on reasonable assumptions, principles of welfare-
enhancement justify the traditional duty to warn of the risks created by a
manufacturer's own products.
Now consider the likely welfare effects of the unanchored, rescue-like
approach urged by Plaintiff. As discussed earlier, under Plaintiffs approach, a
manufacturer of a well-designed and well-manufactured product such as bare
metallic valves would owe a duty to warn, at potentially high cost, about a limitless
38 Id. § IO(b)(4).
16
number of other dangerous products and environmental elements neither created
by the manufacturer not within its physical control at any time. Even quite
reasonable manufacturers could not be expected to discover or understand all such
possibilities and it would be costly for them to educate themselves across such a
broad spectrum of possibilities. Identifying down-the-line users and reaching them
with meaningful warnings would also be problematic and costly.39 Moreover, if
the risks of asbestos-containing gaskets are presumed to be widely known, and
gasket manufacturers and other peripheral players are already supplying warnings,
it is questionable whether redundant warnings from valve manufacturers could do
much good or deliver much in the way of marginable social benefits.
In sum, Plaintiff's open-ended approach to the duty to warn, based on naked
foreseeability and opportunity,40 would not enhance scarce resources but rather
would waste them. One can understand how busy courts might be seduced by the
siren call of a claim to warn of all foreseeable risks whatever their sources. After
39 Comment i to Products Liability Restatement § 1 O(b )( 4) observes: "Compared
with the costs of providing warnings attendant upon the original sale of a product,
the costs of providing post-sale warnings are typically greater. In the post-sale
context, identifying those who should receive a warning and communicating the
warning to them can require large expenditures." Again, the instant case does not
involve a claim of breach of post-sale duty to warn. But the logistical problems of
trying to warn about another manufacturer's product are fairly closely analogous to
the problems accompanying post-sale warnings. See supra notes 24-27.
40 See supra notes 1 and 2 and text accompanying.
17
all, everyone knows that friable asbestos is dangerous, and asking valve
manufacturers to warn users of other manufacturers' gaskets might possibly
function as a reminder for someone down the line. However, as Plaintiff
recognizes, the rule he advances is not, and in principle should not be, limited to
asbestos-containing elements in the valves' broadly varying environments of use.41
Because Plaintiff seeks to expand manufacturers' traditional duties to warn, it is
incumbent on this Court to consider the socially wasteful effects, over time, likely
to accompany Plaintiffs anchor less, open-ended approach. Simply stated,
Plaintiffs proposal would not enhance welfare, but would diminish it.
D. Fairness Principles Support the Traditional Failure-to-Warn Rule
Relied on by Crane Co. But They Do Not Support Plaintiff's
Alternative Open-Ended Approach
Not only would Plaintiffs unanchored, open-ended approach likely be
wasteful of scarce resources and thus detrimental to social welfare, it would also be
unfair to product manufacturers to whom it applied. Even if this Court were
inclined toward succumbing to the lure of the argument that holding manufacturers
liable for failing to warn of risky products created and controlled by others might
somehow help reduce harm to someone, this Court would have to confront the
unfairness to manufacturers of doing so. Properly assessed, Plaintiffs approach
condones using otherwise-faultless manufacturers of defect-free products that did
41 See Brief for Plaintiff-Respondent at 101-103
18
not cause plaintiffs' harm as convenient vehicles with which to compensate the
victims of other, faulty manufacturers' defectively-designed and marketed
products.42 The unfairness of such an arrangement resides not only in the fact that
liability may be crushing but also that tort law would be imposing fault-based
liability43 on manufacturers who: (1) often cannot adequately comprehend what is
being demanded of them-e.g., how broadly must they investigate to discover
strangers who may require rescue?; (2) cannot obtain or verify the facts necessary
to comply with those demands-e.g., which individuals fall into the categories of
those requiring rescue?; and (3) are unable, in any event, adequately to conform to
the demands imposed upon them-e.g., by what mechanical means are they to
deliver the relevant risk information?44
Moreover, the unfairness of Plaintiffs proposed expansive approach has
a significant and unfair wealth-transfer dimension. The manufacturers that initially
bear the increased liability costs generated by Plaintiffs approach would, if the
costs do not force them directly into bankruptcy, presumably pass on those costs to
42 This Court has recognized this application of the fairness norm. See supra note
30.
43 Comment a to § 1 of the Products Liability Restatement makes clear that, in
connection with design and failure-to-warn defects, the test for defect is essentially
the same as the test for negligence.
44 For a process analysis of why courts have rejected a general duty to rescue,
labeling the norms aimed at avoiding these three shortcomings as
comprehensibility, verifiability, and conformability, see James A. Henderson, Jr.,
Process Constraints in Tort, 67 Cornell L. Rev. 901 (1982).
19
their customers and shareholders. Given that the manufacturer's products are not
defective in design and did not proactively cause anyone to suffer harm, the
manufacturer's liability costs would constitute the equivalent of a no-fault excise
tax imposed on innocent parties. And who would receive the benefits of this tax?
Not simply the victims of the defective products-here, asbestos-containing
gaskets-that caused the plaintiffs' harm, but also the shareholders and other
customers of the at-fault corporations. In effect, then, Plaintiffs approach would
constitute a no-fault tax on the innocent in order to subsidize the guilty. Amicus
submits that such an arrangement would be unfair in the extreme.45
IV. NEARLY UNIVERSAL DECISION PATTERNS IN TORT INDICATE
THAT PLAINTIFF'S UNANCHORED, RESCUE-BASED DUTY TO
WARN REFLECTS BAD SOCIAL POLICY
A. The Patterns That Follow Reveal That Plaintifrs Approach Is
Out of Step With Deep Rhythms in American Tort Law and
Social Policy and Thus Constitute Strong Circumstantial
Evidence That Plaintiff's Proposal Reflects Bad Social Policy
While the tort decisions examined below may not be controlling precedents,
Amicus offers them as analogs to the open-ended duty-to-warn approach advanced
by Plaintiff. That courts in New York and elsewhere have nearly unanimously
rejected the approaches in these analogous cases suggests that Plaintiffs position
45 See Hamilton v. Beretta US.A. Corp., quoted in note 61, infra: "[J]udicial
resistance to the expansion of duty grows out of . . . the unfairness of imposing
liability [on one actor] for the acts of another."
20
in the instant case deserves the same negative response. If there were only two or
three such decisions, Amicus might hesitate to draw attention to them. But there
are many more than that, as the following discussions will attest.
B. Traditional Examples, Drawn from Outside the Products Liability
System, Place Workable Boundaries on Rules of Recovery and
Duties of Care
The classic example of American courts refusing to recognize open-ended
legal duties of care is their traditional rejection of a general duty to rescue strangers
whom the defendant actor has not placed at risk.46 To serve as fair and effective
guides to behavior, rules imposing duties to take affirmative action must allow
those actors to whom the duties are addressed to understand what is being asked of
them, to verify the factual elements that trigger duties to act, and to conform to
what the actors are being asked to do.47 A general duty to rescue strangers would
necessarily be vague and open-ended-e.g., one must rescue strangers whenever
doing so will generate social welfare benefits that exceed the costs of rescue.
Moreover, it would often be difficult to determine who needs warnings and how to
get warnings to them. Such a legal standard would not satisfy the above-stated
conditions for effectiveness and fairness and, not surprisingly, courts refuse to
46 See supra note 8, citing Restatement, Third, of Torts: Liability for Physical and
Emotional Harm§ 37 (2010).
47 See supra note 44 and text accompanying.
21
impose such a duty.48 However, courts do recogmze more focused, formal
exceptions to the general no-duty rule that avoid the difficulties of an open-ended
general duty to rescue downstream strangers.49
Judicial denial of recovery for pure economic losses-sometimes referred to
as pure financial losses-is another example of American courts' refusal to impose
open-ended rules of recovery that are likely to lead to potentially unlimited
liabilities.50 A leading decision in admiralty,51 involving an oil spill that disrupted
shipping in a large, commercially busy harbor, explains why a general rule denying
recovery for pure economic or financial losses is necessary:
The number of persons suffering foreseeable financial harm in a typical
accident is likely to be far greater than those who suffer traditional
(recoverable) physical harm. The typical downtown auto accident, that
harms a few persons physically ... , may well cause financial harm (e.g.,
through delay) to a vast number of potential plaintiffs. . . . To use the
notion of "foreseeability" ... to separate the financially injured allowed to
sue from [those] not allowed to sue would draw vast numbers of injured
48 See supra note 51 and text accompanying.
49 See James A. Henderson, Jr. et. al., The Torts Process 244 (8th ed. 2012) (Two
major exceptions are (1) the fact that defendant placed plaintiff in a position to
require rescue and are (2) a preexisting relationship between defendant and
plaintiff.). Observe that neither exception is available on the instant facts.
50 See 522 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 750
N.E.2d 1098 (N.Y. 2001) (emphasizing problem of potentially unlimited liability,
the Court denied liability as a matter of law.).
51 See Barber Lines A/S v. MIV Donau Maru, 764 F.2d 50 (1st Cir. 1985).
22
persons within the class of potential plaintiffs in even the most simple
accident cases.52
The court goes on to observe that "courts cannot weigh or apply [the relevant
factors] case by case."53 As a consequence, courts "have spoken of a general
principle against liability for negligently caused financial harm, while creating
many exceptions."54 In doing so, it is necessary "to consider exceptions by class
rather than case by case."55 These same observations might be made regarding the
approach to manufacturers' duties to warn advocated by Plaintiff in the instant
case. Requiring a manufacturer to warn of a potentially large number of other
products would be equally open-ended and impossible to manage on a case-by-
case basis; such an approach could very well expose a manufacturer of
nondefective valves to crushing liability for huge quantities of harm caused by
asbestos contained in gaskets neither created nor controlled by the valve
manufacturer.
Yet another example of American courts rejecting an open-ended,
potentially limitless rule of recovery involves tortfeasors' exposures to liability for
mental and emotional upset suffered by persons who are neither physically harmed
52 Id. at 54.
53 Id. at 55.
54 Id. at 56.
55 Id.
23
nor placed at risk of such harm by the defendant's conduct. In a leading case
decided by this Court, a dentist sought to recover, inter alia, for his emotional
upset caused when anesthesia equipment rebuilt by defendant caused a patient to
overdose and die in the dentist's arms.56 Denying recovery against the machine
rebuilder for the dentist's emotional upset as a matter of law, this Court observed
that "even as to a [person such as the plaintiff dentist] to whom a duty is owed,
such [emotional] injury is compensable only when [it is] a direct, rather than a
consequential, result of the breach."57 If the anesthesia machine had exposed the
dentist to risk of physical injury, recovery for his upset from that exposure would
be considered direct, and thus appropriate; but recovery is not warranted when the
dentist's emotional upset flows from his witnessing harm to another, even a
patient. This Court concluded:
If the distinction thus drawn [as a matter of law] appears over-fine that is the
inevitable result of the fact that the drawing of any line necessarily
differentiates between close cases. But to extend the duty as plaintiff argues
... would face Trial Judges and juries with a distinction extremely difficult
to articulate or conceptualize ... allowing recovery for emotional injury by
the dentist but [not by] members of the patient's family [who did not witness
the accident.] 58
56 See Kennedy v. McKesson Co., 448 N.E.2d 1332 (N.Y. 1983).
57 Id. at 1335.
58 Id. at 1336.
24
The foregoing observations by this Court help to explain both the need for formal
line-drawing in defining duties of care and rules of recovery, thereby supporting
judicial rulings as matters of law, and the need to draw those lines fairly and
sensibly. The traditional rule invoked by Crane Co. here not only draws
boundaries that are manageable in litigation, but does so in a way that makes good
sense-product manufacturers should, in fairness, be responsible for, but only for,
the risks they create in the course of distributing products.
This Court voiced the same concerns more recently when it rejected as a
matter of law a claim to recover the costs of medical monitoring incurred by a
heavy smoker who, although not manifesting any physical injury, plausibly
claimed to be at increased risk of lung cancer due to his smoking. 59 While this
Court was willing to consider medical monitoring claims on behalf of plaintiffs
who have already manifested physical injury, eliminating that boundary element
would divert scarce resources to less deserving plaintiffs and would threaten
limitless, crushing liability:
[D]ispensing with the physical injury requirement could permit "tens of
millions" of potential plaintiffs to recover monitoring costs, effectively
flooding the courts while concomitantly depleting the purported tortfeasor's
resources for those who have actually sustained damage. Moreover, it is
speculative, at best, whether asymptomatic plaintiffs will ever contract a
disease; allowing them to recover medical monitoring costs without first
59 See Caronia v. Philip Morris U.S.A., Inc., 5 N.E.3d 11 (N.Y. 2013).
25
establishing physical injury would lead to the inequitable diversion of
money away from those who have actually sustained an injury as a result of
the exposure. 60
In this case, the "inequitable diversion of money" under Plaintiffs unbounded
proposal for change would consist of allowing users of one defective product that
caused their injuries-the asbestos-containing gaskets-to be subsidized by the
distributors of another product-Crane Co.'s valves-that were neither defective
nor a cause of plaintiffs' injuries.61
American tort law contains many other examples of ways that our courts
have imposed formal boundaries on rules of recovery and duties of care. This
discussion will consider one more-a fairly recent decision by this Court denying a
claim against a group of firearm manufacturers for adopting allegedly negligent
patterns of marketing handguns so that too many guns end up in the hands of
criminals and other untrustworthy users. 62 In much the same manner as does
Plaintiff in the instant case, the plaintiffs in the handgun earlier case argued that
foreseeability of risk coupled with opportunity to act supported a duty by
defendants to market the handguns so as to avoid injuries to the plaintiffs'
relatives. In dismissing plaintiffs' claims as a matter of law, this Court explained:
60 Id. at 18.
61 See supra note 45 and text accompanying.
62 See supra note 9, Hamilton v. Beretta U.S.A. Corp.
26
Foreseeability, alone, does not define duty-it merely determines the scope
of the duty once it is determined to exist. . . . The injured party must show
that a defendant owed not merely a general duty to society but a specific
duty to him or her. ... That is required in order to avoid subjecting an actor
"to limitless liability to an indeterminate class of persons .... " [citation
omitted.] We have been cautious ... in extending liability to defendants for
their failure to control the conduct of others .... This judicial resistance to
the expansion of duty grows out of practical concerns both about potentially
limitless liability and about the unfairness of imposing liability for the acts
of another.63
No clearer statement could be found expressing the theme running through the
decisions here being considered-that to enhance social welfare and achieve
fairness, courts must place sensible boundaries on the duties owed in tort. When
Plaintiff argues that a manufacturer should be responsible for failing to warn
remote users about the risks presented by products and environmental elements
that the manufacturer neither created nor in any way controlled, Plaintiff fails to
recognize, let alone come to grips with, the considerations raised in the cases
discussed above.
C. Traditional Examples, Drawn from Within the Products Liability
System, That Place Workable Boundaries on Rules of Recovery
and Duties of Care
As one might expect, the same pattern of judicial boundary-setting in tort
law, described above, also runs through the American system of products liability.
This section considers examples that, taken together, reveal this pattern clearly.
63 Id. at 1060.
27
Rather than relying exclusively on specific judicial decisions as examples, what
follows also uses black-letter Sections and Official Comments from the
Restatement, Third, of Torts: Products Liability (1998). None of the examples
about to be discussed is directly applicable here. Moreover, the Restatement is not
binding legal authority. However, the organization that sponsors Restatements-
the American Law Institute-structures them to express rules and principles that
represent majority positions and, where none such are available, that represent the
best-reasoned positions among recognized alternatives. 64 Thus, the Restatement of
Products Liability is an appropriate source of examples upon which to rely in an
effort to identify a discernable pattern in recent American products liability
decisions.
A troublesome issue that confronted the drafters of the Products Liability
Restatement concerns the exposure to liability of manufacturers of nondefective
component parts that are subsequently combined with components made by others
to produce integrated end-products that, because of synergistic risk enhancement,
are defective in design. American courts refuse to impose liability on
manufacturers of nondefective components unless those manufacturers
substantially participate in, and thus to a significant degree control, their
64 See generally James A. Henderson, Jr. et. al., The Torts Process 10-11 (8th ed.
2012).
28
integration of the components into the finished products. 65 An Official Comment
to the Restatement black-letter Section confirming this position observes that:
Imposing liability would require the component seller to scrutinize another's
product which the component seller has no role in developing. This would
require the component seller to develop sufficient sophistication to review
the decisions of the [presumably expert] business entity that is already
charged with responsibility for the integrated product.66
Regarding a component manufacturer's duty to warn, another Official Comment
observes:
[W]hen a sophisticated buyer integrates a component into another product,
the component seller owes no duty to warn either the immediate buyer or
ultimate consumers of dangers arising because the component is unsuited for
the special purpose to which the buyer puts it. To impose a duty to warn in
such a circumstance would require that component sellers monitor the
development of products and systems into which their components are to be
integrated. 67
The facts in the instant case do not call for application of the rules just described-
Crane Co.'s valves did not contribute synergistically to cause the assembled end-
product to be unacceptably dangerous. But the principles at play strongly suggest,
by analogy, that this Court should reject Plaintiff's insistence that Crane Co. owed
a duty to warn of risks entirely created by other defendants' products over which
Crane Co. exerted no control.
65 See Restatement, Third, of Torts: Products Liability § 5 (1998).
66 Id. cmt. a.
67 Id. cmt. b.
29
Another difficult issue concerns a manufacturer's duty to warn about risks
that become known only after the time of original distribution. That courts must
recognize some version of a post-sale duty to warn is clear.68 However, although
such a duty would not, as it would in this case, involve warning of risks presented
by other distributor's products, post-sale duties to warn must be bounded and
limited lest they give rise to the sorts of open-ended, potentially crushing
responsibilities that American courts are loathe to recognize. The solution that the
drafters of the Products Liability Restatement adopted was to recognize a post-sale
duty to warn "if a reasonable person ... would provide such a warning"69 and then
to impose four specific preconditions limiting the circumstances in which a
reasonable manufacturer would undertake to warn, 70 including the requirement that
"the risk of harm is sufficiently great to justify the burden of providing a
warning."71 The first Official Comment to the operative Restatement Section
includes observations that resonate with the major points in this brief:
[A]n unbounded post-sale duty to warn would impose unacceptable burdens
on product sellers. The costs of identifying and communicating with
68 Viewed as a form of rescue, here the post-sale duty to warn rests on the classic
exception based on the rescuer's conduct having placed the plaintiff in a position to
require rescue. In the instant case no similar basis for an exception exists because
Crane Co.'s valves did not place the Plaintiff in need of rescue via warnings.
69 See Restatement, Third, of Torts: Products Liability§ lO(a) (1998).
70 Id. § lO(b).
71 Id. § 10(b)(4).
30
product users years after sale are often daunting. Furthermore, [i]f every
post-sale improvement in a product design were to give rise to a duty to
warn users of continuing to use the existing design, the burden on product
sellers would be unacceptably great. . . . In deciding whether a claim . . .
should reach the trier of fact, the court must determine whether the
requirements ... are supported by proof. . . . In light of the serious potential
for over-burdening sellers . . . the court should carefully examine the
circumstances for and against imposing a duty ... in a particular case. 72
As with all of these examples, this case does not present the issue of post-sale
warnings. But the structure of the relevant Restatement rule, together with the
quoted portions from the Official Comments, argue strongly against Plaintiffs
open-ended approach.
A final example deserves this Court's attention: the Restatement, Third's
rejection of trademark licensors' legal responsibility to persons injured by
defective products manufactured by others to which the licensor's logos are
attached. An Official Comment to the relevant Restatement Section explains:
[E]ven if purchasers of the product might assume that the trademark
owner was the manufacturer, the licensor does not "sell or distribute ...
[the] product manufactured by another." ...
Trademark licensors are liable for harm caused by defective products
distributed under the licensor's trademark [only] when they participate
substantially in the design, manufacture, or distribution of the licensee's
products.73
72 See note 65, Comment a.
73 See Restatement, Third, of Torts: Products Liability§ 14, cmt. d.
31
Once again, as with previous examples, the majority rule regarding trademark
licensors refuses to allow tort plaintiffs to escape the formal requirement that
defendants must have commercially distributed the defective products that
proactively caused the plaintiffs harm. And once again, the only exception to the
general rule is where the defendant manufacturer shares control over the
production or distribution of the harm-causing product.
V. CONCLUSION
Plaintiffs unanchored, open-ended approach to failure-to-warn reflects bad
social policy. By threatening otherwise innocent manufacturers with potentially
crushing liability for failing to warn about the risks of other manufacturers'
products, Plaintiffs approach would diminish social welfare and be unfair to the
manufacturers and their shareholders and customers who are forced to bear such
costs. Moreover, a number of analogous areas of tort law, from both outside and
inside products liability, reveal an unmistakable tendency to avoid duties of care
and rules of recovery that are likely to expose actors to such open-ended liability.
Not surprisingly, as demonstrated in Crane Co.'s and Amici's briefs, a large
majority of American courts, including this Court, embrace the traditional
anchoring requirement that, to be liable for failure to warn, a manufacturer must
have distributed the risky product that caused the plaintiffs harm.
Notwithstanding Plaintiffs superficially complex brief exceeding 125 pages in
32
length, Plaintiff cannot escape the simple reality that the traditional anchoring
element is absent in the instant case; Crane Co. 's products-bare metal valves
installed in G.M. 's system-did not generate the asbestos-related risks that resulted
in plaintiffs harm. Without an anchoring connection to Crane Co. 's valves,
Plaintiffs position approaches imposition of a general duty to rescue strangers.
In sum, Plaintiffs suggested approach to failure-to-warn, if adopted by this
Court, would stand out as a significant departure from basic themes in traditional
tort and products liability law. One can certainly appreciate that this Court may be
reluctant to criticize the holding of their respected colleagues in the Appellate
Division. Even so, Amicus urges this Court to reverse the judgment below.
33
Date: March 18, 2016
M chael H. Park
Consovoy McCarthy Park PLLC
3 Columbus Circle, 15th Floor
New York, NY 10019
(212) 247-8006
Counsel for Amicus Curiae
the Chamber of Commerce
of the United States of America
r essor Jam es A. Henderson, Ji .
ofessor Emeritus
Cornell Law School
1403 Old Winder Beach Road
Vero Beach, FL 32963
Of Counsel (Pro Hae Vice Pending) for
Amicus Curiae the Chamber of Commerce
of the United States of America
34