Cary’s public policy work focuses on product liability, tort and consumer law, and civil justice reform. His practice includes a mix of appellate and legislative advocacy, litigation, regulatory counseling, and scholarship.
Cary regularly authors amicus briefs on behalf of national business, trade and other advocacy groups in cases before the U.S. Supreme Court and state high courts. He frequently files briefs on behalf of organizations including the U.S. Chamber of Commerce, National Association of Manufacturers, American Medical Association and American Tort Reform Association.
Cary assists clients in addressing liability concerns through legislative action and responding to proposals that could potentially foster more lawsuits, excessive liability or unbalanced litigation practices. He has testified before Congress and most state legislatures.
Litigation is also part of Cary’s practice. He has successfully defended major food manufacturers in consumer litigation, and he has helped clients with product liability, medical malpractice, commercial litigation and other matters.
Cary advises consumer product manufacturers and sellers on their obligations to report product hazards and assists them in evaluating the need for a recall. He helps clients effectively respond to inquiries regarding their products from regulators and consumer reports submitted to Saferproducts.gov, United States Consumer Product Safety Commission’s (CPSC) online database. Cary also advises trade associations on CPSC regulations and policy. He has prepared comments on proposed regulations and testified before the Commission.
Through his scholarship, Cary influences development of the law. He has published over 35 articles in prominent law journals. His recent scholarship addresses the surge of consumer class action lawsuits against food manufacturers. Several state supreme courts have cited Cary’s work in their opinions. The Cornell Journal of Law and Public Policy recognized one of his articles as among the five most cited in its 25-year history.
Cary also educates and shapes public opinion through his authorship of widely read reports and op-eds on trends in civil litigation, the liability implications of emerging technologies, lawsuit abuse and legal reform. Publications such as the ABA Journal, National Law Journal, Forbes, Bloomberg BNA, Law360, New York Law Journal, Washington Post, Baltimore Sun and New York Post have featured Cary’s advocacy, scholarship and commentary.
Cary served as an adjunct professor at George Washington University Law School for six years. He serves on the Advisory Board of the Administrative Law Review (American University) and George Washington University Undergraduate Law Review.
Cary is a recipient of the firm’s William G. Zimmerman Award in recognition of his sustained commitment to pro bono legal services. He has handled a wide range of pro bono matters and is an active member of the firm’s Pro Bono Committee.
Publications
Civil Justice
Nuclear Verdicts: An Update on Trends, Causes, and Solutions, U.S. Chamber Institute for Legal Reform, May 30, 2024 (with Christopher E. Appel).
Nuclear Verdict Risk Grows as States Expand Wrongful Death Liability, 32:10 Legal Opinion Letter (Washington Legal Foundation, Dec. 1, 2023).
Nuclear Verdicts: Trends, Causes, and Solutions, U.S. Chamber Institute for Legal Reform, Sept. 2022 (with Christopher E. Appel).
Summation Anchoring: Is It Time to Cast Away Inflated Requests for Noneconomic Damages?, 44 Am. J. Trial Advoc. 321 (2021) (with Mark A. Behrens and Christopher Appel).
A Mountain State Transformation: West Virginia’s Move into the Mainstream, 121 W. Va. L. Rev. 27 (2018) (with Richard R. Heath, Jr.).
Protecting the Victims of Fraudulent Joinder: How Congress and Federal Judges Can Help, 45 Rutgers L. Rec. 89 (2018) (with Victor E. Schwartz).
West Virginia’s Climb: Lawsuit Climate Progress in the Mountain State and the Path Ahead (U.S. Chamber Institute for Legal Reform, Jan. 2018).
101 Ways to Improve State Legal Systems: A User’s Guide to Promoting Fair and Effective Civil Justice (U.S. Chamber Institute for Legal Reform, 7th ed. 2022) (with Victor E. Schwartz and Christopher E. Appel).
The Case in Favor of Civil Justice Reform, 65 Emory L.J. Online 2065 (2016) (with Victor E. Schwartz).
Reptile Mediation? Washington Federal Court Considers, Then Rejects, Proposal to Disadvantage Insurers in Mediation, Int’l Ass’n of Def. Counsel, Civil Justice Response Comm. Newsletter (Mar. 2016) (with Mark A. Behrens).
Building on the Foundation: Mississippi’s Civil Justice Reform Success and a Path Forward, 34 Miss. C. L. Rev. 113 (2015) (with Mark A. Behrens).
The Trial Lawyer Underground: Covertly Lobbying the Executive Branch (U.S. Chamber Institute for Legal Reform 2015) (with Victor E. Schwartz).
Lawsuit Ecosystem II: New Targets, Trends and Players (Victor E. Schwartz & Cary Silverman eds., U.S. Chamber Institute for Legal Reform 2014).
The New Lawsuit Ecosystem: Trends, Targets and Players (Victor E. Schwartz & Cary Silverman eds., U.S. Chamber Institute for Legal Reform 2013).
Gaming of CAFA’s Jurisdiction Exemption for ‘Mass Actions’: How It Can Be Stopped, 22:14 Legal Opinion Letter (Wash. Legal Found. Oct. 25, 2013) (with Victor E. Schwartz).
The Baltimore City Circuit Court Should Reject ‘Consolidation III,’ 28:4 Mealey’s Litig. Rep.: Asbestos 1 (Mar. 20, 2013) (with Mark A. Behrens).
Litigation Tourism in Pennsylvania: Is Venue Reform Needed?, 22 Widener L.J. 29 (2012) (with Mark. A Behrens).
WV's Resolution for 2013: Lose ‘Judicial Hellhole' Label, The State Journal, Dec. 19, 2012 (with Mark A. Behrens).
Who Pays When the “Loser Pays”? Considering Practical Issues, Misperceptions, and Options, Inside ALEC (American Legislative Exchange Council, Apr. 2012) (with Victor E. Schwartz).
The Constitutional Foundation for Federal Medical Liability Reform, 15 J. Health Care L. & Pol’y 173 (2012) (with Mark A. Behrens).
Reducing Wasteful Spending on Litigation: ALEC’s Model Phantom Damages Elimination Act, Inside ALEC (American Legislative Exchange Council), Jan. 2012, at 15.
West Virginia as a Judicial Hellhole: Why Businesses Fear Litigating in State Courts, 111 W. Va. L. Rev. 757 (2009) (with Victor E. Schwartz & Sherman T. Joyce).
The Draining of Daubert and the Recidivism of Junk Science in Federal and State Courts, 35 Hofstra L. Rev. 217 (2006) (with Victor E. Schwartz).
Hedonic Damages: The Bubbling Cauldron, 69 Brooklyn L. Rev. 1037 (2004) (with Victor E. Schwartz), reprinted in 54 Def. L.J. 819 (2005).
Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C.L. Rev. 393 (2005) (with Mark A. Behrens).
Moving Toward the Fully Informed Civil Jury, 3 Geo. J. L. & Pub. Pol’y 21 (2005) (with Steven B. Hantler, Victor E. Schwartz & Emily J. Laird), featured in Terry Carter, Case-By-Case Tort Reform, A.B.A. J., June 2006, at 43.
Consumer Law
Two Years Since MMPA Reform: How Has it Changed Missouri Consumer Litigation?, 78 Mo. B.J. 173 (July-Aug. 2022) (with Jennifer J. Artman).
State Crackdown On Deceptive Ads For Drug Suits Is Welcome, Law360, June 10, 2022.
Governor Should Protect Public Health by Signing Misleading Attorney Ad Legislation, Louisiana Record, June 14, 2021.
DC Court of Appeals Abandons Article III Standing for Consumer Advocacy Groups, WLF Legal Opinion Letter, September 24, 2021.
The Food Court: Developments in Litigation Targeting Food and Beverage Marketing, U.S. Chamber Institute for Legal Reform, August 2021 (with Jim Muehlberger and Adriana Paris).
TransUnion Ruling Should Help Curb D.C. Consumer Claims, Law360, August 10, 2021 (with Jim Muehlberger).
Class Action Chaos: The Rise of Consumer Class Action Lawsuits in New York (New York Civil Justice Institute, May 2021).
Gaming the System: How Lawsuit Advertising Drives the Litigation Lifecycle (U.S. Chamber Institute for Legal Reform, Apr. 2020).
In Search of the Reasonable Consumer: When Courts Find Food Class Action Litigation Goes Too Far, 86 U. Cin. L. Rev. 1 (2018).
The Food Court: Trends in Food and Beverage Class Action Litigation,(U.S. Chamber Institute for Legal Reform, February 2017) (with James Muehlberger).
Bad for Your Health: Lawsuit Advertising Implications and Solutions, (U.S. Chamber Institute for Legal Reform, October 2017).
State Attorney General Enforcement of Unfair or Deceptive Acts and Practices Laws: Emerging Concerns and Solutions, 65 Kan. L. Rev. 209 (2016) (with Jonathan Wilson).
Buckyballs Case Shows What An Uncooperative CPSC Can Do, Law360, June 24, 2014.
CPSC Poised to Change Voluntary Recall Process: Will a More Efficient or a Slower, More Contentious Process Result?, LJN’s Prod. Liab. Law & Strategy, vol. 32, no. 19, Mar. 2014.
State Consumer Protection Laws Run Rampant Without Reform, Law360, Jan. 7, 2014.
I’ll See You in the Agency! ‘Primary Jurisdiction’ Gains Ground As a Defense for Regulated Industries, LJN Prod. Liab. Law & Strategy, vol. 31, no. 11, May 2013.
Flawed CPSC Product Hazard Database, LJN’s Prod. Liab. L. & Strategy, vol. 29, no. 10, at 1 (Apr. 2011) (with Victor E. Schwartz).
CPSC Begins to Implement Online Product Hazard Database: How to Safeguard Against Risks it Portends for the Public, LJN’s Prod. Liab. L. & Strategy, vol. 29, no. 8, at 1 (Mar. 2010) (with Victor E. Schwartz).
Consumer Product Safety Reform Could Mean a Boon for Safety or a Boondoggle For Plaintiffs’ Lawyers: It’s Up to the CPSC, State AGs, the Court, and You, 36:43 Prod. Safety & Liab. Rep. (BNA) 1106 (Nov. 3, 2008) (with Victor E. Schwartz & Christopher E. Appel).
“That’s Unfair!” Says Who – The Government or Litigant?: Consumer Protection Claims Involving Regulated Conduct, 47 Washburn L.J. 93 (2007) (with Victor E. Schwartz & Christopher E. Appel).
Common-Sense Construction of Consumer Protection Acts, 54 Kan. L. Rev. 1 (2006) (with Victor E. Schwartz).
Lawsuits Without Injury: The Rise of Consumer Protection Claims, HarrisMartin’s Columns: Drugs & Supplements, Oct. 2006, at 4 (with James P. Muehlberger), also published in HarrisMartin’s Litigation Watch: Arthritis Drugs, Oct. 2006, at 1.
Judicial Selection
The Case for Adopting Appointive Judicial Selection Systems for State Court Judges, 11 Cornell J. L. & Pub. Pol’y 273 (2002) (with Mark A. Behrens).
Promoting Judicial Independence and Public Confidence in the Courts: The Case for Judicial Appointments in Texas, Veritas – Quarterly J. of Pub. Pol’y in Texas (Mar. 2002) (with Mark A. Behrens).
Jury Service Improvement
Higher Juror Compensation Trend Is Good For Justice System, Law360, December 15, 2023.
ALEC’s Jury Patriotism Act Reduces Hardship for Thousands of Jurors and Ensures Representative Juries on Complex Cases, Inside ALEC (American Legislative Exchange Council, Apr. 2012).
Arizona’s Experience with the Jury Patriotism Act: Assessing the First Year of New Jury Reforms, 45 Judges’ J. 18 (2006) (with G. Thomas Munsterman), discussed in Lisa Brennan, Plaintiffs Lawyer Proposes Pay Hike for Vioxx Jurors, N.J.L.J., Feb. 9, 2006.
Jury Service: It’s Changing in Ohio, 32 Cap. U.L. Rev. 101 (2003) (with Victor E. Schwartz).
Improving the Jury System in Virginia: Jury Patriotism Legislation is Needed, 11 Geo. Mason L. Rev. 657 (2003) (with Mark A. Behrens).
Five Ways the Kentucky Legislature Can Improve Jury Service, 42 Brandeis L.J. 1 (2003) (with Mark A. Behrens).
Jury (Dis)service: Why People Avoid Jury Duty and What Florida Can do About it, 28 NOVA L. Rev. 143 (2003) (with Paul W. Rebein & Victor E. Schwartz).
Jury Patriotism: The Jury System Should Be Improved for Texans Called To Serve, 35 St. Mary’s L.J. 117 (2003) (with K.B. Battaglini & Mark A. Behrens).
The Justice System: Louisiana Undertakes Jury Reform, La. Bar J., Vol. 51, No. 3, Oct./Nov. 2003, at 182 (with René E. Thorne & Mark A. Behrens).
Making Jury Duty a Little Friendlier, 46:10 The Advocate (Idaho State Bar), Oct. 2003, at 23 (with J. Walter Sinclair & Mark A. Behrens).
Fulfilling the Promise of a Representative Jury in Missouri, 59 J. Mo. Bar 127 (July-Aug. 2003) (with C. Patrick McLarney).
Full Participation of Citizens in the Jury System, For the Defense (Defense Research Insitute), July 2003, at 12 (with Paul W. Rebein).
Safeguarding the Right to A Representative Jury: The Need for Improved Jury Service Laws, 7:1 Briefly (Nat’l Legal Center for the Pub. Int. Jan. 17, 2003) (with Victor E. Schwartz & Mark A. Behrens).
Preemption
Preemption: Department of Labor Reversal and Ruling By Washington Supreme Court Could Impact Respirator Availability, 40:44 Prod. Safety & Liab. Rep. (Bloomberg BNA) 1274 (Nov. 5, 2012) (with Victor E. Schwartz).
Preemption of State Common Law by Federal Agency Action: Striking the Appropriate Balance that Protects Public Safety, 84 Tulane L. Rev. 1203 (2010) (with Victor E. Schwartz).
Punitive Damages
Calculating Punitive Damages Ratios With Extracompensatory Attorney Fees And Judgment Interest: A Violation of the United States Supreme Court’s Due Process Jurisprudence?, 48 Wake Forest L. Rev. 1295 (2013) (with Mark A. Behrens & Christopher E. Appel).
Asbestos Litigation “Magnet” Courts Alter Procedures: More Changes on the Horizon, 27:8 Mealey’s Litig. Rep.: Asbestos 1 (May 16, 2012) (with Mark Behrens, Kevin Underhill, Erin Sparkuhl & Christine Edwards).
Punitive Damages in Asbestos Personal Injury Litigation: The Basis for Deferral Remains Sound, 8 Rutgers J.L. & Pub. Pol’y 50 (2011) (with Mark A. Behrens).
The Supreme Court’s Common Law Approach to Excessive Punitive Damage Awards: A Guide for the Development of State Law, 60 S.C. L. Rev. 881 (2009) (with Victor E. Schwartz & Christopher E. Appel).
Punitive Damages and Compliance With Regulatory Standards: Should A Manufacturer or Service Provider Be Punished When It Follows the Law?, 12:1 Nat'l Legal Center White Paper; (Nat'l Legal Center for the Pub. Int. Sept. 2005) (with Victor E. Schwartz).
I’ll Take That: Legal and Policy Problems Raised by Statutes That Require Punitive Damages Awards To Be Shared With The State, 68 Mo. L. Rev. 525 (2003) (with Victor E. Schwartz & Mark A. Behrens).
Tort Law
FTC Sends Warning to Mass Tort Lawyers and Lead Generators, The Legal Pulse (Washington Legal Foundation), Sept. 27, 2019 (with Frank Cruz-Alvarez).
Torts of the Future II: Addressing the Liability and Regulatory Implications of Emerging Technologies, (U.S. Chamber Institute for Legal Reform, April 2018) (with Sarah Goggans and Jonathan L. Wilson).
State of Liability: New York's Costly Tort Laws and How to Fix Them, Empire Ctr. for Public Pol'y, Dec. 12, 2017 (with Mark Behrens).
Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies, (U.S. Chamber Institute for Legal Reform, March 2017) (with Phil S. Goldberg and Jonathan L. Wilson).
Category Liability: Properly Precluding Claims That Propose an Alternative Product Rather Than an Alternative Design, 44:40 Prod. Safety & Liab. Rep. (Bloomberg BNA) 1 (Jan. 11, 2016) (with Victor E. Schwartz).
The Rise of "Empty Suit" Litigation. Where Should Tort Law Draw the Line?, 80 Brook. L. Rev. 599 (2015) (with Victor E. Schwartz).
Laboratories of Tort Law: A Three-Year Review of Key State Supreme Court Decisions (U.S. Chamber Institute for Legal Reform 2014) (with Victor E. Schwartz).
The Garlock Bankruptcy Order and What it Means for Defense Counsel, For the Defense (DRI), May 2014, at 10 (with Mark A. Behrens).
Gaming of CAFA’s Jurisdiction Exemption for ‘Mass Actions’: How It Can Be Stopped, 22:14 Legal Opinion Letter (Wash. Legal Found. Oct. 25, 2013) (with Victor E. Schwartz).
Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm was Allegedly Caused by Generic Drugs has Severe Side Effects, 81 Fordham L. Rev. 1835 (2013) (with Victor E. Schwartz & Phil Goldberg).
The Baltimore City Circuit Court Should Reject ‘Consolidation III,’ 28:4 Mealey’s Litig. Rep.: Asbestos 1 (Mar. 20, 2013) (with Mark A. Behrens).
WARNING: Alabama Court’s Blame-Shifting Pharma Decision Will Have Serious Side Effects, 21:17 Legal Opinion Letter (Wash. Legal Found. Feb. 8, 2013) (with Victor E. Schwartz & Phil Goldberg).
Respirators to the Rescue: Why Tort Law Should Encourage, Not Deter, the Manufacture of Products that Make Us Safer, 33 Am. J. Trial Advoc. 13 (2010) (with Victor E. Schwartz & Christopher E. Appel).
Marketing Pharmaceutical Products in the Twenty-First Century: An Analysis of the Continued Viability of Traditional Principles of Law in the Age of Direct-To-Consumer Advertising, 32 Harv. J.L. & Pub. Pol’y 333 (2009) (with Victor E. Schwartz, Michael J. Hulka & Christopher E. Appel).
Neutral Principles of Stare Decisis in Tort Law, 58 S.C. L. Rev. 317 (2006) (with Victor E. Schwartz & Phil Goldberg).
Miscellaneous
Fact or Fiction: Ensuring the Integrity of Expert Testimony, U.S. Chamber Institute for Legal Reform, February 10, 2021.
Nanotechnology: Innovations, Potential Risks, and Government Scrutiny, In House, Apr. 2007, at 12 (with Judith L. O’Grady).
Criminalizing Product Liability Law: Putting to Rest a Bad Idea (U.S. Chamber Institute for Legal Reform, Oct. 2006) (with Victor E. Schwartz).
Consumer Protection in the Legal Marketplace: A Legal Consumer's Bill of Rights Is Needed, 15 Loy. Consumer L. Rev. 1 (2002) (with Victor E. Schwartz, Mark A. Behrens & Rochelle Tedesco).
Toppling the House of Cards That Flowed From an Unsound Supreme Court Decision: End Inadmissibility of Railroad Disability Benefits in FELA Cases, 30 Transp. L.J. 105 (2003) (with Victor E. Schwartz).
Presentations
Florida's Tort Reforms - What's All the Buzz About?, Association of Corporate Counsel Tampa Bay CLE, May 18, 2023 (with Ashely Hayes and Terri Parker).
COVID-19: Litigation Trends, Employer Vaccine Mandates, and Legislative Activity Surge, American Tort Reform Association (ATRA) and Shook, Hardy & Bacon webinar, December 2021, (with Carrie McAtee, Kristen Page and Paul Williams).
Lawyer Advertising: Legislation, Free Speech, and Consumer Protection, Judicial Symposium on Civil Justice Issues, November 17, 2021.
Media Coverage
Michigan Pharma Shield Law Furthers Debate on FDA Preemption, Bloomberg Law, November 17, 2023.
Mounting COVID Lawsuits Will Challenge Dozens of State Liability Shield Laws and Executive Actions, Legal Newsline, August 12, 2020.