Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn once again to torts professor Jill Wieber Lens of the Baylor Law School in Waco, Texas. This is the second time we’ve interviewed Professor Lens, the first occasion being way, way back in December of 2010. You can read that interview here.
1. What do you think is the most significant new development in torts or products liability of the last year?
One significant new development in products liability in the last year has to be the Supreme Court’s decision Mutual Pharmaceutical Co. v. Bartlett, in which the Court found that design defect claims based on generic drugs are preempted. The result was not surprising based on the Court’s prior finding in Pliva, Inc. v. Mensing that failure to warn claims based on generic drug manufacturers were preempted. Both of the results are based on FDA regulations that require generic drugs to mirror the prior FDA-approved name brand version; thus, generic drug manufacturers lack any ability to alter the design of the drug or the warning. Because of the practical inability to both comply with FDA regulations and to use a design/warning that would comply with tort law obligations, the Supreme Court has found that defective design and warning claims against generic drug manufacturers are preempted. The Bartlett and Mensing decisions have huge consequences. After these cases, people injured by design or warning defects in generic drugs have no legal redress against the drug manufacturers. Ironically, had those injured people taken the name brand version, their claims against the name brand manufacturer are not preempted. But if the injured people take the generic version — which most people do because it is cheaper and state law allows pharmacists to automatically fill the prescription with a generic version — they have no legal redress against the generic drug manufacturer. This is something to be concerned about when considering President Obama’s health care law. Health insurance companies are likely to push generic drugs even more to further lower costs. But patients injured by design or warning defects in the generic drugs will be unable to pursue relief against the drug manufacturer. Admittedly, this issue becomes moot if the FDA alters its rules regarding a generic drug manufacturer’s ability to change the design of the drug and the warning. That, however, would also likely increase generic drug manufacturers’ costs—and the prices of generic drugs.
2. If you could change one component of federal punitive damages jurisprudence, what would it be, and why?
I wish I could eliminate the idea of a reasonable ratio between the amounts of punitive and compensatory damages. The Supreme Court first introduced its guideposts for evaluating the constitutionality of a punitive damage award in BMW v. Gore in 1996. One of those guideposts is whether there was a reasonable relationship between the amounts of the damages. The Court has never defined that reasonable relationship, but did once mention that a single-digit ratio is most likely to be constitutional. The Court also has never applied the reasonable relationship ratio in a case involving physical injury, leaving courts to wonder if that single-digit ratio still applies in those cases. Regardless, I understand the attractiveness of a ratio — it’s easy to understand and to apply. It’s also what many state legislatures use to cap punitive damages. But a ratio makes little sense if you look at the punishment and deterrence purposes of punitive damages. Punitive damages should be based on the defendant’s conduct regardless of whether the plaintiff suffered minimal or exorbitant compensatory damages. The defendant’s same malicious conduct battering two plaintiffs could leave one plaintiff with $500 in compensatory damages and the other with $5 million based on the plaintiffs’ different ages, medical conditions, jobs, etc. If the tortious conduct is the same, there should be no reason to lower the first plaintiff’s punitive damages simply because he had only $500 in compensatory damages.
3. Do you similarly see any problems with state regulation of punitive damages?
Generally, I wish legislatures and courts could coordinate better. As an example, Georgia has a provision allowing only one punitive damage award for products liability claims. That award is supposed to punish the defendant for selling the defective product to all consumers and a portion of it is paid to the State. The provision is problematic after the Supreme Court’s opinion in Philip Morris USA, Inc. v. Williams, which constitutionally limits a punitive damage award to punishing the defendant for what it did to the specific plaintiff. Now, put these together. After Philip Morris, to comply with the Fourteenth Amendment, a punitive damage award in a products liability claim in Georgia can punish the defendant only for injuring the specific plaintiff. But the separate Georgia one-award provision mandates that the one punitive damage award is the only one that can be imposed. The two laws cannot produce a rational punitive damage award, but the Georgia provision is still the law.
4. You’ve now been a law professor for three years. What has been the biggest surprise of academia?
The students’ curiosity. I love to see their enthusiasm to learn—they really do want to understand the material. I also love to hear their questions. I often hear far-fetched hypotheticals in Torts especially, but the students ask because they are curious and desire to learn. It’s refreshing.
5. Unlike many law professors, you practiced for several years before joining the faculty. How do you believe your career in private practice has helped you as a professor?
I’m able to bring practical knowledge to class. For instance, I am familiar with the difficulty of explaining things to clients. And I’m able to explain that in class—you may understand that only final judgments can be appealed, but understand that you will also have to explain the final judgment rule to your client and your client likely won’t be happy about it. As another example, I understand the importance of liability insurance in torts. I spend time in class to make sure my students understand that even though analyzing the legal elements is not the only analysis—you may also want to find out whether the person your client wants to sue has insurance and whether that insurance covers the tort. Otherwise, it may not be worth it either for you or your client.
6. As a law professor, how do you use the Internet to communicate with students and the general public?
I’m always trying to think of ways to use the Internet more. I tend to be more traditional in my classes for entering students. I also don’t allow them to use laptops because I find that they type everything down and neglect to actually listen to me. Baylor has a great Blackboard Internet system for class use. It provides many mechanisms to increase feedback to students, which students appreciate. One thing I would like to try at some point is to post quizzes that students can take in their free time to see if they are appreciating the material.
BONUS QUESTION: Who is your favorite television lawyer?
My answer is predetermined by my favorite shows. I really enjoyed Oliver Babish on “The West Wing” and Baltimore’s finest representation for drug dealers, Maurice Levy, on “The Wire.” I’m sure if there was an attorney on “Game of Thrones,” he/she also would be one of my favorites.
BIOGRAPHY: Jill Wieber Lens joined the Baylor University School of Law faculty in 2010 as Assistant Professor. In 2009, Professor Lens was a Visiting Assistant Professor at the University of Louisville School of Law. Before entering academia, Professor Lens practiced commercial and appellate litigation in St. Louis, Missouri. She teaches Torts, Products Liability, and Appellate Procedure. Her current research interests include tort reform generally and punitive damages.