Here at MassTortDefense, the focus is often on developments in ongoing mass torts and significant product liability litigation. How interesting to be able to report on the Second Circuit’s decision to reject plaintiffs’ attempt to create “in essence a mass tort for making inaccurate statements.” In Benzman v. Whitman, No. 06-1166, 2008 WL 1788401 (2d Cir. 4/22/08), the court ordered the dismissal of a putative class action seeking to hold the former EPA administrator liable for her erroneous reassuring statements about the health risks of the World Trade Center dust in the aftermath of the Sept. 11, 2001, attack.

The class action lawsuit was brought on behalf people who lived, attended school, or worked in lower Manhattan or Brooklyn following the attack. The class alleged under a variety of theories that Christine Todd Whitman and EPA officials acting at her direction made statements regarding air quality  that failed to report health risks associated with WTC dust or misrepresented the nature of those risks, thereby violating the Plaintiffs’ Fifth Amendment substantive due process right to be free from government-created health risks. The district court denied Whitman’s motion to dismiss the claim against her as an individual for misleading the public about the air quality.

2d Circuit Reverses
The Second Circuit rejected any individual liability claim, pointing out that no court has ever held a government official liable for denying substantive due process by issuing press releases or making public statements. Such a suit against a federal official for decisions made as part of federal disaster response and cleanup efforts implicate the special judgment and policy factors that counsel against creation of a litigation remedy. Plaintiffs’ allegations fell far short of showing either the type of special relationship between governmental actor and victim or a state-created danger arising from the relationship between the state and the private assailant.

The 2d Circuit noted the evidence “that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance.” Id. at *11.

The nuances of a Bivens Fifth Amendment claim, and intricacies of the APA, are perhaps not frequent aspects of mass torts. But the 2d Circuit clearly recognized the potential impact of recognizing the claim alleged. Plaintiffs alleged a state-created danger, sufficient to impose liability, based on a senior official’s public statements that offered assurances of environmental safety that turned out to be substantially exaggerated. The Court called this an attempt to create “in essence a mass tort for making inaccurate statements.” Id. at *5. The 2d Circuit would have no part of creating such a novel mass tort.

That type of policy hesitation ought to at least be part of the analysis of new causes of action (like medical monitoring), attempts to expand existing causes of action (CFA claims), and application of important legal defenses (preemption).