Questions Presented
1. Whether the Due Process Clause permits a state to use parens patriae standing and statistical proof to recover hundreds of millions of dollars in a “Trial by Formula” that eliminated individualized defenses that have uniformly prevented courts from certifying comparable cases as class actions and allowed the state to recover for contamination of unidentified wells and wells that do not yet exist.
2. Whether a state-law tort duty is preempted when it retroactively outlaws the only feasible option for complying with a federal mandate.
Case Updates
U.S. Supreme Court declines to review $235 Million “trial by formula” jury award
May 16, 2016
The petition for certiorari was denied.
U.S. Chamber files amicus brief in support of cert.
February 22, 2016
The U.S. Chamber, joined by PhRMA, urged the U.S. Supreme Court to review a decision of the New Hampshire Supreme Court that upheld a $235 million “trial by formula” jury award based on “statistical” expert testimony. In this case, a jury awarded the state of New Hampshire, acting in its parens patriae capacity, $235 million in damages for the purported contamination of 5,830 drinking wells (including hypothetical and unidentified future drinking wells) with an oxygenating compound the federal government required the defendant to include in gasoline. The number of contaminated wells was extrapolated from a statistical study of 177 wells that found that a mere six wells had been contaminated.
The Chamber’s amicus brief argued that the imposition of hundreds of millions of dollars of liability based purely on an abstract statistical exercise papers over complicated questions of causation and harm. The use of such evidence effectively thwarts the due process right of defendants to present individualized defenses to all elements of liability, and it is a recurring problem in state-initiated enforcement actions against a broad array of companies. The Chamber’s amicus brief also noted that a similar question concerning the applicability of due process protections in class actions in state courts is presented by another pending certiorari petition, Wal-Mart Stores, Inc. v. Braun.
John Beisner, Jessica Miller, and Geoffrey Wyatt of Skadden, Arps, Slate, Meagher & Flom LLP served as co-counsel to the U.S. Chamber Litigation Center in this brief.