Anyone remember Monty Python's first movie, before anyone had ever heard of them? Along with the dead parrot and the Lumberjack Song, "And Now For Something Completely Different" featured a formally dressed man, sitting at an unexceptional desk, both of the sort you might find in a British law firm of the era (early 1970s) – except that the man and his desk were in some unusual location.
That's what came to mind when we read Gustafson v. Springfield, Inc., ___ A.3d ___, 2020 WL 5755493 (Pa. Super. Sept. 28, 2020). Only, replace the man at the desk in a strange place, with a courtroom scene located in a rather surreal legal landscape.
Gustafson determined that a federal statute, the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§7901, et seq., ("PLCAA") was unconstitutional under the Tenth Amendment, relying primarily on a decision we've read many times − Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) – that never even mentions the Tenth Amendment. In so doing Gustafson employs a rationale, at once both paleolithically conservative and pro-plaintiffly radical, that would render any federal "tort reform" statute unconstitutional. Notably, Gustafson's rationale (should it stand) could include such current topics as the tort immunity conferred by the PREP Act and any federal attempt to immunize businesses from liability for COVID-19 infections.
Until the PLCAA, Bexis had spent the better part of five years arguing against the creation of "public nuisance" liability against manufacturers of properly functioning firearms in cases such as Young v. Bryco Arms, 821 N.E.2d 1078 (Ill. 2004), City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002), and Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001). By broadly preempting tort claims against manufacturers of properly functioning firearms, the PLCAA put a rather abrupt end to such litigation. Until Gustafson, perhaps.
Briefly, here's how Gustafson ended up with the result that the PLCAA is unconstitutional. Gustafson interpreted the Tenth Amendment as reflecting that "[t]he Founders feared fully centralized government." 2020 WL 5755493, at *10. It cites to the holding in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), that the Commerce Clause could not support Obamacare's individual mandate to purchase health insurance because that statute was creating commerce, rather than regulating it. But actually, Gustafson's primary reliance on NFIB, at both places it is discussed, 2020 WL 5755493, at *11, 16, is on Justice Scalia's dissent, rather than on the opinions supporting the Court's result in that case. In a declaration that rather ignores the 14th Amendment, Gustafson stated:
Moreover, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce.
2020 WL 5755493, at *12 (citations and quotation marks omitted). If that statement were literally true, then everything from the civil rights legislation to interstate highway speed limits would be unconstitutional. The unstated significance of the 14th Amendment is that, with respect to federal power over the states, "the Framers" don't have the last word.
Gustafson analogized to NFIB to strike down the PLCAA because the plaintiffs who were barred from bringing suit were crime victims, and had not engaged in any "commerce" involving guns, which bears some similarity to uninsured people being required to buy insurance. "Congress commits the same constitutional overreach in the PLCAA [as in NFIB]. The Act regulates the inactivity of individuals who may never have engaged in a commercial transaction with the gun industry." 2020 WL 5755493, at *17.
But perhaps the most remarkable statement in Gustafson is this: "[T]he filing of a state lawsuit, in state court, based on state tort law, 'is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.'" 2020 WL 5755493, at *18. The quoted case United States v. Lopez, 514 U.S. 549, 567 (1995), had nothing whatever to do with lawsuits of any sort, but rather involved guns in school zones. Gustafson thus created its central legal proposition – that lawsuits aren't "commerce" for purposes of the Commerce Clause – out of thin air.
Although the Supremacy Clause specifies that federal law is the supreme law of the land, Gustafson combines that just-discussed statement with the Tenth Amendment to make state common-law tort claims supreme over federal law. First, "The PLCAA undoubtedly mandates the substantive law of tort lawsuits for the States. Thus, the Act is a Congressional tort-reform bill. 2020 WL 5755493, at *19. More than anything else, to Gustafson, federal tort reform is a constitutional no-no:
By declaring that an individual's criminal act "shall be considered the sole proximate cause of any resulting death, personal injuries, or property damage," Congress commands where the States must draw the line of liability. The PLCAA thereby reforms the law of torts and converts it from state to federal law. The Act replaces the local policy decisions of the Supreme Court of Pennsylvania and other state supreme courts regarding local torts with Congress's policy preferences on local issues.
Id. at *22 (citation omitted). Congressional determinations that "litigation costs" can be severe enough to impinge on commerce were, in Gustafson, "weak grounds" on which "[w]e are unable and unwilling to surrender the whole body of Pennsylvania law and sovereignty to Congress." Id. Without tort litigation being "commerce," then "Congress did not rationally link the PLCAA to any burden upon interstate commerce that the Constitution recognizes." Id. at *23.
Even though admitting that Erie v. Tompkins, "did not name the Tenth Amendment," id. at *24, Gustafson reads Erie as the most powerful Tenth Amendment case ever. "[T]here stands, as a perpetual protest against [a federal law of torts], the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States." 2020 WL 5755493, at *24. Of course, Erie said nothing about torts, or Congress – and certainly not congressional tort reform. What Erie actually abolished was the prior "practice" of the federal courts (not Congress) of deciding diversity cases generally (whether tort or otherwise) under federal common law rather than state law. See 304 U.S. at 75-76. Not surprisingly, the Department of Justice (which intervened to defend the constitutionality of a federal statute), viewed this "reliance" on Erie as "wholly out of place." 2020 WL 5755493, at *24.
To no avail, of course.
Once Gustafson repurposed Erie as a Tenth Amendment case applying to Congress – instead of an inherent authority case applying to the federal courts − state tort law received unprecedentedly sacrosanct status:
[T]he Supreme Court built that holding upon the constitutional premise at the heart of the [plaintiffs'] challenge – namely, that common law (and tort law, in particular) is state law. Therefore, Congress may not nationalize tort law, as it did under the PLCAA.
2020 WL 5755493, at *24. Perhaps like a Monty Python skit, Gustafson then slides all the way down the slippery slope from product-specific immunity to the "top to bottom" abolition of state tort law:
Congress could eventually connect any state-court proceeding to some impact upon one party's finances and therefore interstate commerce. . . . If Congress can declare, as it did in . . . the PLCAA, that filing a petition or complaint in a state court to vindicate state rights substantially burdens interstate commerce, then what remains for the States to govern under the Tenth Amendment? Reforming the judicial systems of the States from top to bottom in such a manner goes far afield from the enumerated, limited powers of Congress.
Id. at 25. Thus, Gustafson concluded, "Congressional tort-reform bills, like the PLCAA, have no place within that system; tort law and statutes reforming it are an exercise of police power reserved to the States under the Tenth Amendment." Id. at *27.
Wow. We're not sure there has been such a tour de force of states-rights tinged judicial activism since Dred Scott v. Sandford, 60 U.S. 393 (1857). Gustafson combines a Tenth Amendment-based, state-law interposition against federal authority that would do John C. Calhoun proud, with a notion of state tort law as untouchable by federal power that has not been the law at least since Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), recognizing federal preemption of state common-law tort claims, or even New York Times Co. v. Sullivan, 376 U.S. 254 (1964), recognizing federal constitutional limits on state tort law.
The PLCAA preempted state law by declaring that certain defined actions "may not be brought in any Federal or State court." 15 U.S.C. §7902(a). If that's unconstitutional as a violation of some newly ascendant state power to prevent federal interference with the common law, then we might expect other common-law plaintiffs to attack just about every other federal statute that currently preempts common-law tort actions. In the same vein, the Class Action Fairness Act and many of the jurisdictional grants in 28 U.S.C. chapter 85 would be unconstitutional if lawsuits pursuing state tort remedies are beyond the reach of federal law.
Turning to current events, if federally-enacted immunity from state common-law tort suits has suddenly become unconstitutional, then what of tort immunity under the PREP Act, which as we discussed is a far more extensive roll-back of state common law than the PLCAA. Ditto with respect to a federal grant of COVID-19-related immunity, which has been a major stumbling block for further legislation in recent weeks.
Perhaps Gustafson's rationale is limited by the initial analogy to NFIB, and excludes common-law suits by plaintiffs who did have commercial interactions with defendants. Maybe, maybe not, since that qualifier largely fell by the wayside as Gustafson proceeded further and further with its Tenth Amendment paean to the primacy of the state common law.
In any event, like COVID-19 and the PREP Act, Gustafson is what it is. It's a published decision, so it's something defendants need to know about and plan for. If one imagined what the other side's ideal legal structure would look like, Gustafson probably comes pretty close. But, like the Monty Python man at the desk, Gustafson is so far out in legal left field compared to any other recent product liability decision we're aware of that we're skeptical (sceptical?) that it will survive – even in Pennsylvania. There could be rehearing en banc, and if not, we would expect at least two more rounds of appellate review. The docket in Gustafson does not reflect any amicus participation so far. That's something else we expect to change.
This article is presented for informational purposes only and is not intended to constitute legal advice.
