Alito and the ‘Little Guy’

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  • 09/21/2022

Sen. Dick Durbin (D.-Ill.) this morning accussed Judge Alito of not giving a fair shake to the so-called "little guy." Alito put forward a good defense himself, but Sen. John Cornyn's (R.-Tex.) office lays it out in detail.

Here's a look at Alito's record on consumer protection and patients' rights cases:

In Applebaum v. Nissan Motor Acceptance Corp., 226 F.3d 214 (3d Cir. 2000), Judge Alito held that Nissan violated the Consumer Leasing Act because the company’s car lease made it impossible for the consumer to calculate the early termination penalty he might owe. Judge Alito held that the formula used to calculate termination fees must be “reasonably understandable in light of the difficulty of the matter being disclosed.” Id. at 219 n. 6. Alito said Nissan’s formula depended on a variable which it did not disclose to its customers. Id. at 223.

In Alexander v. University of Pittsburgh Medical Center System, 185 F.3d 141 (3d Cir. 1999), Judge Alito dissented from the panel majority’s opinion, which held that the lower court erred in refusing to instruct the jury to consider whether the plaintiff-parents were contributorily negligent in their daughter’s death and remanded for a new trial. Judge Alito argued that the jury instruction was properly denied and concluded that the fault for any poor decision rested with the defendant-doctors, rather than the parents. Judge Alito wrote: “Except perhaps in truly extreme cases, it is not negligent for a patient such as Alyssa or her parents to follow the advice of primary care physicians.” Id. at 153.

In Fisher v. USAA Casualty Insurance Co., 973 F.2d 1103 (3d Cir. 1992), Judge Alito held that a consent-to-settle provision in the plaintiff’s insurance policy could not be relied upon by the insurer because it had denied coverage prior to the settlement. “Once presented with a request for consent,” Judge Alito argued, “an insurer is not free to deny coverage under the policy terms and later deny coverage on the ground that the insured failed to obtain its consent to settle.” Id. at 1107.

In Houck v. Drummond, 12 F.3d 394 (3d Cir. 1993), Judge Alito again dissented from the panel majority’s opinion in a medical malpractice suit. The majority affirmed the lower court judgment in favor of the defendant-doctors and denied a new trial. Judge Alito, however, found that the district court gave an erroneous jury instruction on informed consent. Because he found the error was not harmless, Judge Alito would have reversed the verdict and remand for a new trial.

In McDowell v. Philadelphia Housing Authority, 423 F.3d 233 (3d Cir. 2005), Judge Alito held that, under the terms of a settlement agreement, the Philadelphia Housing Authority owed plaintiff-tenants for failing to factor rising gas prices into the gas allowance as provided by the Housing Act. Judge Alito reversed the lower court’s finding that the plaintiff-tenants had not suffered any actual provable injury. He found that, in fact, the tenants did have actual provable injury and should be compensated.


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