Torts, Professor Boyle

Fall 1998

Final Exam

Question One

Carillon's strongest claim is Dr. Huber's failure to disclose. Huber failed to disclose alternate treatments for Grenadier's disease and the risks associated with the treatment Carillon received. Huber also failed to disclose his own interest in Carillon's unusual white blood cells. This essay will explore potential actions against Huber, then consider potential causes of action relating to the Hydrozap machine and Demona's contract with Carillon.

Huber had a legal duty to disclose alternate treatments. Huber did not inform Carillon about the "CIA" treatment. Huber would have received only $3,800 from the HMO Demona for his treatment of Grenadier's disease, no matter what course of treatment he decided upon. The "CIA" treatment would have cost three times Huber's revenue from Demona. However, that Huber could not have profited from this course of treatment is not a defense against adequately informing Carillon of his options. "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." (Canterbury, p. 235) Individuals who are not doctors rely upon physicians to inform them of what is involved when undergoing medical treatment. Because the average person does not have the requisite knowledge to fully understand what is involved in a course of treatment, it is incumbent upon his doctor to provide information "with which to reach an intelligent decision." (Canterbury, p. 235)

Dr. Huber may argue that because the treatment is "relatively new," he had no duty to disclose it. While such a defense might be adequate when the proposed alternative is still experimental, there is no evidence that CIA was an experimental treatment.

Huber may also argue that the treatment need not have been disclosed because the HMO would not pay for it. Even assuming that Demona's refusal to pay for the full cost of the operation would have been legitimate (Had Carillon known of and been refused the treatment, he may have had a cause of action there), Carillon still had the right to be informed this option. Knowing that the chances of curing Grenadier's disease with CIA would be significantly better, Carillon may have chosen to pay for the treatment himself. Huber wrongfully denied Carillon this choice.

Huber also failed to disclose a material risk of the Hydrozap treatment. The Hydrozap treatment has a rare side effect of converting "fast twitch" muscle fibers into "slow twitch" muscles. Carillon's first course of the Hydrozap treatment resulted in this debilitating side effect. This is extremely significant for Carillon because he is a professional beach volleyball player. Without fast twitch muscles, Carillon's career is over.

Huber's defense is that this side effect is very rare and of little negative consequence for most patients. The Canterbury court rejected a subjective standard of causation regarding whether a patient would elect not to undergo the treatment if he knew of the potential side effect. To ask Carillon now whether he would have had the treatment or not would certainly produce a "No" answer. A better method is to determine this question "in terms of what a prudent person in the patient's position would have decided if suitably informed of all the risks bearing significance." (Canterbury, p. 240) The crucial phrase is "in the patient's position." A reasonable individual who depends on his fast twitch muscles would not undergo a treatment with this potentially debilitating side effect. A prudent person in his position would choose to treat the symptoms of the disease with antibiotics, or, had he been informed, pay for the more expensive treatment that did not have the devastating side effect.

A physician has the defense to a claim of failure to disclose if the patient cannot give consent (due to emergency, unconsciousness, etc.) or if disclosure would present a threat to the patient's wellbeing. Huber may employ the later defense. However, the courts narrowly circumscribe this exception. Huber's argument that Carillon would have declined the treatment to his detriment because of the potential side effect fails. In Carillon's position, the side effect was of tremendous importance. Furthermore, an alternate treatment existed; Carillon could have received treatment for the disease without risking his fast twitch muscles.

Additionally, Huber had a duty to disclose his own interest in Carillon's unusual white blood cells. Within the concept of informed consent, a doctor has the duty to disclose all information relating to the patient's decision regarding treatment. The California Supreme Court held that the duty of a doctor to "disclose personal interests unrelated to the patient's health" is contained in the doctrine of informed consent. (Moore, p. 24) Huber will argue that this duty exists only when the physician's interests "may affect the physician's professional judgment." Huber's interest in Moore's white blood cells may not have affected his decision regarding which treatment to recommend. In fact, it was not until after Huber took Carillon's blood and other bodily substances that he turned to the question of treatment. Though it may not have affected Huber's judgment regarding treatment, it did affect his decision to treat Carillon at all. Had Huber not discovered Carillon's unusual white blood cells during the first consultation, he may have informed Carillon of all potential treatments, leaving Carillon with the possibility of finding another physician who would undertake the more expensive option. Instead, Huber said that Carillon was to return for "follow up tests." This demonstrates that Huber's personal interest in Carillon's cells "affect[ed] the physician's professional judgment."

Carillon's conversion claim is more problematic. The Moore court declined to recognize a claim of conversion regarding a patient's proprietary interest in his spleen and bodily fluids. The majority, concurring, and dissenting opinions in Moore extensively discussed the legal and public policy interests at stake in recognizing such a claim. This essay will not restate all of those arguments, but suggest how Carillon's case is distinguishable from Moore.

The Moore court held that California statutes relating to the disposition of excised cells governed the case. Connecticut may have different statutory law regarding an individual's ownership of bodily products. Furthermore, the heart of the dispute in Moore was the doctor's taking of parts of the patient's spleen. There are several reasons Carillon's property interest in his blood is very different from a patient's interest in a nonrenewable organ. The state has valid reasons for prohibiting an individual from selling a nonrenewable organ--there are some things that simply should not be commodified and some may sell organs to great personal detriment. Blood is a saleable commodity. Every day thousands of Americans legally sell their plasma. Furthermore, individuals are allowed to sell sperm and eggs. Carillon's unusual white blood cells are far more like plasma sold to blood banks and sperm and eggs sold to fertility clinics, than, for example, an enlarged spleen or sold kidney. This does not eliminate the hard questions raised in Moore, such as the strict liability implications of conversion for medical products. It does, however, provide a more compelling case for recognizing the tort of conversion for Carillon's blood.

The measurement of damages is also a difficult question. The profitable blood plasma products Huber developed were not taken directly from Carillon. Carillon cannot be entitled to recover the full value of these products. However, he should have been able to negotiate some compensation for the use of his unusual white blood cells. Because Huber failed to disclose his personal interest in Carillon's blood, this negotiation was not possible.

Carillon may claim that Dr. Huber falsely imprisoned him. Under the pretense of "follow up tests" Carillon visited Huber's office a second time. During this visit Huber did nothing to address Carillon's disease; he only appropriated Carillon's bodily fluids for his own purposes. Huber will argue that Carillon was not really imprisoned; he may have left at any time. Furthermore, on the authority of Herd v. Weardale Huber will argue that Carillon consented to his time at the office. However, Carillon was there under false pretense. Carillon believed that in order to fight his disease he had to visit the doctor and submit to extraction of bodily substances. Whether Carillon has a winnable claim will hinge on the court's conception of false imprisonment. If the court takes a narrow perspective--false imprisonment is conscious confinement--Carillon will lose. If the court adopts a broader perspective--false imprisonment is the wrongful restriction of liberty and the freedom of movement--Carillon's chances are better.

Carillon may have a warranty claim against the Edison Industries, the manufacturers of Hydrozap. Because he was a third party beneficiary of the machine, Carillon will only have a claim if Connecticut has adopted Alternative B or C of §2-318 of the U.C.C.. Alternative A only extends express and implied warranties when the individual injured is a guest in the home of the buyer. Under Alternative A, since Carillon was not in a "home," it is unlikely he could recover under warranty. Furthermore, even under Alternatives B or C, Carillon's claim may fail. There may be a time-limit on either an express or implied warranty. The machine had been in use for five years. The warranty probably expired.

Carillon has a better claim under strict products liability for the Hydrozap's electrical failure. The first possible products liability claim is that of a manufacturing defect. Edison Industries will cite §402A of the Restatement (2nd) of Torts, which states that the seller is liable only if the product "does reach the user or consumer without substantial change in the condition in which it is sold." As the machine worked normally for five years, Edison can assert that its product did not reach Carillon without substantial change. Carillon may turn to Comment G of §402A, which states that safe condition must include "proper packaging . . . and other precautions required to permit the product to remain safe for a normal length of time when handled in a normal manner." Carillon will argue that the product was used normally and the crack in the cover, which caused the failure, shows that it was defectively manufactured. This claim is weak. The York Street hospital frequently moved the machine, producing vibrations that probably caused the crack. This is not normal use of sophisticated, delicate hospital equipment.

A design defect claim is stronger. An inexpensive safety device could have been added to the Hydrozap that would have prevented this injury. A simple current monitoring device, such as that in an automobile, could have been attached to the machine to show whether or not the generator was operative. In Micallef v. Miehle the court noted that what is "reasonable care . . . will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm." Were such a device attached to the machine it would have been easy to tell if it was operating properly. If Carillon or attendants could tell it was not working properly, he could have received the treatment elsewhere. Upon this showing of causation, the burden is switched to Edison Industries to demonstrate that the cost of such a safety device would outweigh the benefit.

Carillon may argue that Edison had a duty to warn of the "slow twitch" side effect. Edison will respond that its documentation did note the risk, and that this warning was adequately conveyed to Dr. Huber, a "learned intermediary." Unlike the birth control pills in MacDonald v. Ortho, treatment for Grenadier's disease is far from common. Therefore, it was reasonable to leave the warning to the doctor. The duty to warn claim will fail.

Regarding all of these strict liability claims, Edison will argue that Federal law preempts. This is a weak assertion. Federal regulations prohibiting the opening of Hydrozap, except by an authorized repair facility, hardly amount to Congress taking over the field. There is no evidence that by creating this regulation Congress intended to preempt state law, as explained in Cipollone.

Finally, Carillon may contest the validity of his contract with Demona and Dr. Huber. He will argue that it was an adhesion contract. On the authority of Obstetrics & Gynecologists v. PepperCarillon will claim that the contract is unenforceable because he was unaware of the conditions of the contract. However, Carillon had choices regarding which HMO he joined. A better claim is that the contract violated the Open Courts provisions of the state constitution. Even if other contract elements were permissible, an individual should not be allowed to contract away the right to trial.

Question Two

The excerpt makes a reasonable point about the mixing of public and private law in 20thcentury America. However, the author is over-broad in implying that private law is really public. This essay will demonstrate that 20th century developments in the law, specifically the easing of the privity requirement and adoption of strict liability for products, are not a triumph of public over private. Rather, these developments are better understood as judicial attempts to maintain a balance regarding the interests and power of different private actors.

Cohen is correct that the rules of property derive from the state. State decisions, whether executed by the judiciary or the legislature, do alter the rules of property. For example, in Union Oil v. Oppen, the defendants could have been given the "property" right to pollute or the plaintiffs could have been given the "property" right to the continued existence of fish. How the law mediates these "property" claims is public action. Even in an imagined libertarian world where the government's only purpose is enforcement of contracts, there would be "public law" by the creation of default rules, etc.. The existence of law itself is public. Taken to the extreme, all law is public.

The recognition that law is created and enforced by the state does not mean that the distinction between public and private law was only "a pretty fantasy that masked the reality of economic and political power." Rather, the judicial innovations of the 20th century, though appearing as encroachments of public law in the "sphere of pure autonomy," are better understood as preserving a balance of power among private actors. To inform this discussion, I borrow from Lawrence Lessig's theory of judicial review.

In "Fidelity in Translation" Lessig argues that in order to maintain fidelity to the Constitution, judges must translate the law from the context in which it was articulated to the contemporary state of affairs. Judges cannot merely look at the text of the Constitution and directly apply it today. They must replicate the original meaning into the current context. Using this approach, for example, Lessig justifies the Miranda protections. There is no textual constitutional guarantee against self-incrimination in a police interrogation. However, at the time of the Founding there was no real organized police force. The state's power was primarily in the courthouse. By extending the protection against self-incrimination to police, the Miranda court preserved the balance of power between the state and the individual. The Court maintained fidelity to the Constitution by taking into account the changed, contemporary context.

Many of the judicial innovations of the 20th century can be similarly explained. In MacPherson v. Buick Cardozo cleverly extended the principle of Thomas v. Winchester. Thomasheld that a duty of care in labeling poison went beyond the purchaser because it would "put life in imminent danger." Cardozo used "danger" to eliminate the requirement of privity in automobile manufacturing negligence suits. "If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and is used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully."

By eliminating the privity requirement for dangerous products, Cardozo did not simply inject public goals into private law. Instead, Cardozo preserved the balance of power between autonomous individual actors. Before the middle of the 19th century the vast majority of products were homemade or purchased directly from a manufacturer. By 1916, when MacPherson was decided, the Industrial Revolution was reaching its maturity. Instead of purchasing a wagon wheel from the local wheelmaker, an individual would purchase an entire automobile from a third-party dealership. The privity requirement barred an individual injured by a negligently manufactured product from seeking redress from the manufacturer. As large-scale manufacturing of goods distributed through third-parties became more common, producers of defective products hid behind privity to escape liability. The erosion of the concept of privity was not an injection of public law into private tort law. Instead, it was the preservation of balance in relations between autonomous individual actors.

In Greenman v. Yuba Power Products an individual was injured by a defective power tool. Yuba contended that the action against them was barred because the plaintiff did not give notice within the required "reasonable time." In Greenman Justice Traynor quoted Prosser regarding the importance of the distinction between commercial relationships and consumer relationships. "As between the immediate parties to [a] sale . . . notice requirements [were] sound commercial rule[s]; as applied to personal injuries, and . . . to remote seller[s] they became booby-trap[s] for the unwary." (White, p. 202) Again, judicial innovation was an attempt to maintain the balance of power between manufacturing corporations and individual consumers.

Traynor's decisions did have important public consequences and were partially based on the public policy objective of protecting individuals from uncompensated injury. Traynor perceived that one of strict liability's virtues was "to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." (White, p. 202) Still, we must recognize the important balancing of interests that accompanied such decisions. Evidentiary concerns were another compelling justification for strict liability. For example in design defect strict liability (which is really negligence analysis), once the plaintiff shows the design was the proximate cause of the injury, the burden of proof is switched to the defendant. In pre- and early-industrial times product designs were not complex. As manufacturing developed and products became more complex, it became almost impossible for a plaintiff to prove product negligence. By shifting the burden to manufacturers, the balance of interests was preserved.

Changes in private law, as exemplified by the weakening of the privity requirement and the imposition of strict liability for products, demonstrate the judiciary's attempt maintain a balance of private interests. Rather than merely extending public law, judges in the 20th century attempted to maintain fidelity to common law relationships between autonomous individuals.

Question Four

The statement is incomplete regarding the moral and political problems of tort law. It is concerned entirely with economic efficiency, and pays no regard to the initial distribution of resources. The statement does not provide guidance as to whether "efficiency" is determined on the basis of offering or asking price. It does not consider the time element of potential damages or that costs may already be accounted for in the "calculus." It ignores important questions raised by the tort system's practice of assigning damages on the basis of lost income. For these reasons, any guidance provided by the statement would serve to exacerbate the problems and tensions within tort law. Examples drawn from Boomer v. Atlantic Cement, INS v. AP, and Kelley v. R.G. Industries demonstrate some of these problems.

In Boomer the court declined to order an injunction because of the cement plant's importance in the local economy. Instead, the court ordered that the plant make a payment to the plaintiffs as compensation for "servitude on the land." The most glaring problem with this decision is that it is extremely difficult to accurately determine permanent damages. The damages may be inadequate given future unforeseen health ailments. If the plaintiffs are enjoined from suing for abatement of the nuisance, will their children have a right to seek redress in a generation? It is commonly said that everyone "will have his day in court." It is questionable whether the Boomer arrangement can constitutionally prohibit subsequent actions against the same nuisance.

Additionally, complaining homeowners may have already been compensated for the nuisance. Just as homes next to airports or oil refineries are discounted because of their unattractive neighbors, the plaintiffs in Boomer likely paid less for their homes than residents in a similar, but unaffected, neighborhood.

The court could have granted the entitlement to one of the parties and then allowed them to negotiate. If the plaintiffs were granted the entitlement, the plant would have to compensate them. If the plant were granted the entitlement, the plaintiffs would have to pay the plant to reduce or eliminate the pollution. Such an approach, however, illustrates the problem of determining whether to use an "offering" or "asking" price. Were an asking price used, the homeowners would be given the right to demand the plant not pollute. This property right would allow the homeowners to bargain strategically. Perhaps knowing that the cement producer has great resources available, they could hold-out for damages in excess of real economic harm. This is a significant transaction cost. Law-and-economists who subscribe to the Kaldor-Hicks theory would simply assign the entitlement to the plant, believing that because the plant would pay the most its use is most efficient. In addition to not compensating the individuals who are harmed, this assumes that the judge simultaneously has and does not have the information necessary to assign rights efficiently.

If the offering price is employed, the plant gets the right to operate, but should compensate the homeowners for the nuisance. Still it will be very difficult to determine the true "cost" of the nuisance. Such different results demonstrate an important concern that an economic efficiency evaluation does not fully address.

INS v. AP illustrates other problems concerning how to define "harm." According to the passage, it may have been more economically efficient for the Court to allow INS to appropriate the information from AP. Were INS allowed to use AP's information, it would certainly be better off. At the moment INS appropriated the news, AP would be no worse off. Allowing this practice would be a Pareto improvement. However, over time AP's incentive to produce the news could be reduced. Eventually, AP might have gone out of business, or it would change its practices to prevent INS from using the information. Alternately, were the court to conceive of INS as AP's competitor, causing greater harm to AP than benefit INS creates, the quote in question would demand that INS not be allowed to operate. Were competition to be defined as "harm," growth in the economy would be stifled.

In Kelley v. R.G. Industries the court found that the production of "Saturday Night Specials" was useful only to criminals and therefore the harm was greater than any good. By this analysis, a Pareto superior position is attained by prohibiting the production of the guns entirely. Again, this raises questions about the definition of harm. The court may not have considered that some poor individuals might legitimately use the inexpensive guns for self-protection. Some plaintiffs have contemplated attempts to make gun and ammunition manufacturers internalize all of their costs. Any injury or death resulting from a gun would be attributable to the manufacturers. In addition to the self-defense concerns raised above, gun ownership advocates would also argue that such a policy would have a chilling effect on the 2nd Amendment right to arms.

Any attempt to allocate entitlements on the basis of economic efficiency is incomplete without a fuller understanding of the conception of harm, how prices (asking or offering) are determined, and how the time element of harms are to be accounted for. When one considers that resources are distributed unequally before an efficiency approach is even considered, economic analysis is still more problematic.