Torts 1998 -- Prof. Boyle



Karch Carillon can sue Dr. Huber for two different types of intentional torts based upon the facts that Huber took samples of Carillon's bodily fluids during Carillon's second visit to York Street Hospital, and performed unauthorized research on Carillon's blood drawn during his first and second visits. The first cause of action, lack of informed consent (or breach of fiduciary duty), requires that Carillon prove that Huber failed to disclose information that a "reasonable patient would want to know," and performed a medical procedure based on this uninformed consent. Moore. Huber will answer this claim by pointing out that Carillon expressly consented to these procedures in his contract.

To respond, Carillion will argue that Huber performed these procedures solely for his own reputation and possibly material benefit, and that they were not necessary or beneficial to the treatment of Carillion's disease. Huber did not disclose these facts, which were interests unrelated to Carillion's health, and affected Huber's judgment. Moore. Huber is required to disclose any information that a "reasonable patient would want to know" in order to make an informed decision concerning his treatment. Canterbury, Moore. Huber's failure to disclose these facts deprived Carillion of the right of every adult to make informed decisions concerning the course of his medical treatment. Moore.

The second cause of action, conversion, requires that Carillon prove that Huber interfered with Carillon's ownership of his personal property by using his original blood samples, and taking further samples, to secure "scientific immortality." Moore. Thus, Huber has an additional defense against this cause of action, because he can argue not only that Carillon consented to have the samples taken, but that Carillon's bodily fluids are not his "personal property" for the purposes of conversion law. Moore.

Huber has strong public policy arguments to support his consent and property defenses against Carillon's two claims. Huber will claim that research doctors should not be forced to disclose "irrelevant" research concerns, and that patients should not be granted property interests in bodily fluids, because the medical research industry depends on the availability of such samples. To require "rigorous" consent, and recognize property rights, would bring the research world to a grinding halt, and deprive the public of essential developments in medical research. Even if research survives, it would be by creating a "market" in bodily fluids, which might be just the first step toward a market in the sale of body parts. Furthermore, it was Huber, and not Carillon, who recognized and exploited the value of Carillon's white cells, and it would be unfair to reward Carillon for his genetic misfortune, and deny Huber the fruits of his labor.

Although arguments based on the need for unfettered access to research "materials" were successful in Moore, they will be less successful in the present case, because there already is a market in many bodily fluids. Huber took something from Carillon that could have legally sold on his own, whether it was blood, sperm, or (possibly) saliva. Thus, Carillon is likely to win both of these claims. However, as Moore illustrates, his arguments concerning patient autonomy will be better received in the informed consent claim, because "free research" arguments are most powerful when linked to the distasteful image of "blood sales."

If Carillon wins the informed consent claim, he can expect to be reimbursed for any expenses he incurred as a result of his second visit, such as travel costs, medical expenses, and lost earnings. (Given his condition, lost earnings will be low.) It is unlikely that Carillon will be awarded any damages for pain, suffering, or lost enjoyment of life, because the tests are painless and without side effects. However, Carillion may win punitive damages, because a jury of mostly non-professionals will consider Huber's activity outrageous, and they will recognize that a larger damage award is needed to deter Huber's lucrative wrongful conduct.

If Carillon wins the conversion claim, he will have a small chance to win partial compensation for Huber's subsequent research earnings, because the court will have recognized Carillon's property rights in the fluids. If the court includes these earnings within the "full value" of Carillon's bodily fluids, they will force Huber to "buy" his earnings from Carillon. Emanuel's.



Huber's decision to administer the Hydrozap treatment, as opposed to the more efficacious CIA procedure, gives rise to two more causes of action against the doctor. First, Carillon can sue Huber again for lack of informed consent, this time based upon Huber's failure to disclose the financial incentives, the improved chance for cure, and risks of rare side effects on "fast twitch" muscle fibers. Second, Carillon can sue Huber for malpractice, based on the negligence of this treatment choice.

Carillon's argument for "lack of informed consent" is more difficult on these facts, because Hydrozap does have potential benefits, and Huber considered them when he prescribed it. Under Moore, the standard for disclosing financial interests "unrelated to the patient's health" is close to full disclosure. However, Huber (and likely Demona as amicus) will make powerful policy arguments that disclosing doctor's financial incentives would increase health care costs, and eliminate the benefit of managed care. They would argue that only doctors and HMOs have the expertise to make such decisions, and full disclosure of such factors would lead patients to practice defensive medicine "on themselves," shopping around for unnecessarily expensive treatments.

However, information about the improved chance for cure (from 25% to 33%) and the rare side effects are clearly "related to the patient's health," and Carillon can argue more plausibly that they fall within "what a reasonable patient would want to know." Moore, Canterbury. Still, the muscular side effects that he suffered are "so incredibly rare and so harmless for most people" that Carillon probably will not be able to prove that Huber should have known he would consider them material. Canterbury. Carillon's best chance will be to claim that Huber should have asked his occupation, so that he would know what risk are material. More than likely, though, Carillon will only convince the court that Huber negligently failed to disclose the improved chance of cure.

To prove causation, Carillon will show that if he had known of this chance, he would not have consented to the Hydrozap treatment. Canterbury. The presence of the CIA procedure makes this easy, because Carillon obviously would have chosen a 33% chance over a 25% chance. For the same reason, Huber cannot argue that disclosure posed a "threat of detriment" to Carillon. Canterbury.

Huber will win the malpractice claim, however, because the median cost of Grenadiers treatment indicates that most doctors prescribe Hydrozap. Titus. As the courts move away from disclosure questions, and into actual patient treatment decisions, they will be more respectful of policy arguments emphasizing the costs/benefits of treatments, and the institutional expertise of doctors.

If Carillon wins either claim, he will request compensation for his side effects, but Huber will be able to argue that Hydrozap was not the cause-in-fact of his disease, and that if he was not cured, the side effects are negligible, because he would not have been able to play volleyball anyway. Herskovits. Courts are sharply split about whether "lost chances of survival" (which are even more compelling than "lost chances of cure") should be compensated. Epstein. If the court follows the Herskovits rule, Carillon's recovery would be significant, because he would recover his lost chance of cure, as well as a portion of the effect of his side effects on his lost earnings. If he loses this point, though, his lost vertical leap will be irrelevant, and his lost earnings will be non-existent.


Carillon can also sue Demona for negligently depriving him of the most reasonable treatment under the circumstances. Carillon could argue that fixing payments at $3,800 prevented Huber from choosing the CIA procedures. In theory, Carillon could establish each one of the elements of this claim: duty, breach, cause, and harm. However, Demona would have experts testify on industry custom and cost/benefit calculations to redefine the extent of the duty. Furthermore, policy arguments concerning the freedom and expertise necessary to make cost efficient health care decisions are so compelling in this context, and the political lobby of HMOs is so strong, that a judge would probably throw this claim out of court on the first motion to dismiss, by redefining the extent of the duty or finding no proximate cause. Finally, some states have statutes that prevent patients from suing HMOs for malpractice.


York Street Hospital

Carillon can sue the York Street Hospital for negligently failing to maintain working Hydrozap equipment. He would argue that the employees were negligent by failing to bring the equipment to an approved repair facility for inspection or testing at any time during the five years of use. The hospital would be liable for the actions of its employees through the doctrine of respondeat superior. Carillon may be able to shift the burden of proof to the hospital by invoking the doctrine of res ipsa loquitur. Carillon can easily prove that the machine was in the exclusive control of the hospital, and that he was not negligent, but it will be harder to prove that the malfunction does not usually happen in the absence of negligence. Restatement § 328. The best he can do is to point out that the malfunction is itself unusual (this is not sufficient, but suggestive.) Byrne, Colmenares.

With or without res ipsa loquitur, the success of this claim will hinge on the custom of the industry and the cost/benefit tradeoffs involved in moving the machine offsite for inspections. The hospital will have a strong claim to expertise in these matters. Carillon should not try to sue for failure to inspect the Hydrozap onsite, because such a suit would probably be preempted by the federal law forbidding onsite inspection. Although Carillon could conceivably argue that he was merely seeking compensation through a private cause of action, it seems unlikely that he could bring a state tort claim alleging that someone should have violated (rather than somehow gone above and beyond) a federal statutory requirement. King.

However, if Carillon were to win a negligence claim against the hospital, his damages would present a very interesting problem. He would probably be awarded the added debilitation as a result of going off his antibiotics, and his lost 25% chance of being cured, but he would still be left with his muscular side effects, which occurred before the hospital's negligence ever took effect. Therefore, he would get pain and suffering for his debilitating symptoms (it's unclear whether they are still "occasional" or more frequent), but relatively little for his lost earnings or enjoyment of life, because he wouldn't have been playing volleyball anyway.


Edison Industries

Carillon can sue Edison Industries (or any equipment distributor/retailer involved as an intermediary) four different ways based on the breakdown of the Hydrozap machine. He can sue under UCC § 2-318, or Restatement § 402A, for defect in design, manufacture, or failure to warn. First, his warranty claim would require that the state in which he sues applies UCC § 2-318 Alternative C, because he is suing a corporation, and not a natural person. Carillon can easily prove that he "may reasonably be expected to ... be affected by the goods and ... is injured by the breach of warranty," and would almost certainly win this claim. Epstein. Edison may argue that the machine was not used properly, but the fact that it is portable suggests that the vibrations of moving from room to room are part of the ordinary or intended use, or at the very least a "foreseeable misuse." (This same point applies to each of the § 402A claims, in which the defense is similar.) Volkswagen.

Second, to bring a design defect claim, Carillon would have to prove that the Hydrozap did not perform as an ordinary customer would expect, causing him to lose his 25% chance of cure. Although Edison will argue that the product's failure was not the proximate cause of his danger, and was not inherently "unreasonably dangerous" to him, Carillon will win with analogies to life preservers, bulletproof vests, burglar alarms, and other safety products. The machine was not guaranteed to succeed, but it was guaranteed to improve his chance of cure, and it failed to do so. (These arguments will also defeat Huber's claim that Hydrozap only damaged itself. Casa Clara.) If the court allows Carillon to invoke the Barker rule, he can argue that the product's plastic cover design caused him harm, so the manufacturer must prove that the design was optimal. Barker. This should be difficult to prove, because of the availability of high-quality, low-cost plastics.

Third, Carillon can sue on a manufacturing defect claim, and argue that Edison made some latent error in production that eventually caused the plastic cover to crack. Although this argument is the weakest § 402A claim, it could be strengthened by Pouncey, in which the court allowed the jury "freely ... to infer manufacturer negligence from circumstantial evidence."

Fourth, Carillon can probably win a failure to warn claim, because Edison did not warn of the risk of malfunction after vibrations. Edison should have foreseen the transportation of their units, tested them for durability, and warned buyers of the risks.

Because these claims are based on Hydrozap's breakdown, Carillon has to address cause-in-fact, and damages would only be for his lost chance of cure and added debilitation, keeping in mind that he had already suffered side effects before these occurred. Carillon will not be able, unfortunately, to recover for his side effects, because Edison warned of the danger to a learned intermediary (hospital employees and probably Huber). MacDonald. Edison need not warn Carillon directly, because Huber and the hospital were almost completely in charge of his treatment. MacDonald. If Carillon were to win this claim, though, together with a claim about Hydozap's breakdown, he would recover for his side effects, debilitation, and lost chance of cure, which would imply recover for his lost earnings.


Finally, the arbitration and liquidated damages clauses of the contract between Carillon and Demona/Huber are probably unenforceable terms of an adhesion contract. Although Carillon could have joined a different HMO, or not joined an HMO at all, these options may be financially unrealistic for him (depending on his wealth and the financial benefits of joining this plan), and a contract is an adhesion contract if it denies the weaker party "a realistic opportunity to bargain," and gives them "no choice as to the terms." Obstetrics. Although Carillon could have chosen another doctor in the plan, all of Demona's contracts are the same.

Carillon can prove that the broad terms of this contract did not "fall[] within [his] reasonable expectations," and that they are "unduly oppressive" in the circumstances, by pointing to his lack of knowledge about the terms, and the doctor's willful exploitation of his bodily fluids. Obstetrics. He will be helped by the requirement that adhesion contracts limiting the tort liability of the stronger party must provide "plain and clear notification," and secure an "understanding consent" from the weaker party. Obstetrics. Huber's best approach will be to rely on policy arguments concerning the cost of health care, and malpractice claims in particular. However, these will probably fall to Carillon's counterpoints concerning procedural fairness and due process rights.


Mensch depicts the intellectual history of the early 20th century through the imagery of the medieval siege. The Realists, on their high horses, surround the edifice upon which "the whole structure of the classical scheme depended": the doctrinal "wall" between public and private law. Year by year, Realists would target different classical concepts, such as "property," or "proximate cause," and pick away at the bricks in the old conceptualist wall. After just a few decades, Mensch leaves no doubt that little is left of the classical scheme. Its "fundamental premises" had been "undermined," and the "whole liberal worldview ... was only a mirage." Since then, she claims, "jurists have dedicated themselves to the task of reconstruction."

A brief look at the development of proximate cause, just one of these "bricks," is enough to dismiss Mensch's overstated thesis that classicism is dead, and American jurisprudence has been reduced to a pile of Realist rubble. When the Realists addressed the issue of causation in the 1920's, they did not seek utterly to destroy the doctrine of proximate causation. Rather, like the classicists, they sought to reinvent this legal concept it in light of their own insights, and to employ it to achieve their intellectual goals. The critical project of the Realists, even in its most subtle form, never successfully supplanted the methods of classical thought. Instead, the two schools blended into a collection of "concepts," "facts," and policy judgments that remains foundational in contemporary American law.

The classical concept of causation used the "language of proximate causation" to describe "injuries that as a matter of policy were deemed too marginal or 'remote'" to hold parties liable for under negligence law. White, 93. Proximate cause, otherwise known as "legal" cause, was a way of expressing both a "factual link" and "an implicit policy judgment" concerning the defendant's responsibility for certain harms. Ibid.

As Mensch suggests, Realists sought to bring these "implicit policy judgments" of the classicists out into the open. Leon Green, in his book Rationale of Proximate Cause, asked legal theorists and judges to "remove[] from the area of causation all questions that did not pertain to a determination of the 'causal relation' between the defendant's conduct and the plaintiff's injury." White, 94. This reorganization was put into practice by Cardozo in his Palsgraf opinion. In this famous case, a railroad porter attempted to help two men board a train, and accidentally caused one of them to drop a box of fireworks, which exploded, knocking loose a tile, which hit a woman standing some 20 feet away. Cardozo wrote that the question of causation was reduced solely to whether the man caused the woman harm, which he did. The central question, on his analysis, was that as a matter of law, the railroad attendant's duty did not extend to the woman, who was an unforeseeable plaintiff. Palsgraf.

Both Green and Cardozo illustrate that Mensch has grossly overstated her case. Both authors, while certainly suggesting a radical revision of the proximate causation, do not throw it away altogether. Each author locates himself entirely within the edifice of private law, and reorganizes just one small aspect of it. Furthermore, while both authors unmasked some of the fundamental fictions of the classical scheme, as Mensch suggests, they did not do so completely. Much of the classical view of proximate cause, for example, still remains. Today, as law students, we still learn that the modern view of the concept is best explained by "foreseeable" causes, but its ambiguities are now filled in by policy judgements.

Indeed, this broader perspective reveals the general inadequacy of Mench's thesis. A cursory examination of contemporary legal education reveals the enduring legacy of the classical structure. Even at the top law schools, the old "walls" remain. Most first year law curricula are still organized by the same private law subjects: contracts, torts, civil procedure, and property. While it is plausible that Realism has abraded some of the cornerstones of Classicism, it equally clear that it did not erode them all.


The Thesis

[As a statement, this sentence doesn't "solve, restate, or exacerbate" anything, it merely suggests a definition of economic efficiency. To resolve that dilemma, I am going to "read into it" the assumption that economic efficiency is an appropriate goal for our tort system.]

This thesis sets out an ideal scenario in which entitlements have been distributed with perfect efficiency. It then attempts to explain which sorts of people would have which sorts of entitlements in that world by referring to what would happen if you tried to move entitlements. The people that have entitlements, it says, are the people who can gain the most from them, or can pay the most for them. That is, if you move an entitlement from A to B, B won't gain enough to compensate A for her loss. Alternatively, if you give it back to A, she can compensate B for his loss, and still be better off.

The thesis does not lay out any characteristics about A that make her the best person to have a particular right, other than her superior ability to compensate B. It doesn't mention whether she is willing to compensate B, or whether she will. It just says that she can.

The Application

Now I will apply this principle to three cases:

In Boomer v. Atlantic Cement, a cement plant emits dirt, smoke, and vibrations onto a neighbor's land. The neighbors ask the court to issue an injunction, forcing the cement plant to stop operations, and to pay for the damage they have done in the past. The court decides to issue an injunction only until the cement plant pays damages for past and future damages, and then they can continue operations. So what is the entitlement? Who is A? and B? The only way to make sense of the theory is to say that theory takes the past harm as a given, and asks whether the plant is entitled to "pollute without paying," or whether the owner can "get paid for the pollution." If this is the case, it appears that the owner wins, because he gets paid. Does this follow the thesis? No. The landowner does not gain so much from the right that he can afford to compensate the cement plant for their loss. At first glance, it appears that the theory would require the cement plant to win the entitlement in Boomer.

In INS v. AP, the AP takes information from the INS's papers and bulletin boards, and publishes it for profit. The entitlement, given the harm, is AP's ability to take the information without paying for it, or INS's ability to get paid for it. INS wins, but the theory suggests that this may be wrong, if AP's profit is greater than INS's loss, because then AP could compensate INS, and still come out ahead.

Similarly, in LeRoy Fibre v. Chicago, a farmer stacks his flax near train tracks abutting his property, and a railroad car comes by and ignites his flax. Again, the farmer wins, but the theory suggests that the railroad should win, because they can pay the farmer for his loss and still come out ahead.

From this interpretation of the thesis, it appears that the court makes the same decision in these three cases, and that each one is wrong. However, on another interpretation of this thesis, Boomer is incorrect, and the other two cases are correct. If we read the thesis to say that the person who is willing to pay the most for an entitlement should pay that price for it, and that then the outcomes are different. In Boomer, the court forces the defendant to pay the plaintiff permanent damages. However, if the court had awarded an injunction, then the plaintiff could have set the highest price for the entitlement in a settlement. On the other hand, in INS and LeRoy Fibre, the court awarded the requested damages (and even an injunction in INS), so that the plaintiff was able to set the highest price of the entitlement.

Unfortunately, this thesis does not explicitly mention whether anyone should pay for entitlements, or what price they should pay. Without this requirement, it would achieve economic efficiency, but as these three cases suggest, it would decrease safety, compensation, deterrence, punishment, and equitable distribution, by giving entitlements to parties who can best exploit them. However, if we modify the thesis to require that those who can pay the most shouldpay the most, then we may come closer to serving the many masters of our tort system.

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