The Interior Designer Did It!

Imagine, if you will, a tea party. Not a Boston Tea Party, or a political Tea Party, but a good old-fashioned, civilized tea party. It is a meeting of friends and unstated enemies over tea, crumpets, and jam. The scene is a stately manor in the hills of Northumberland. In attendance are all the ladies of high society, dressed in their Sunday best despite it being Wednesday. Yes, this is a party of the landed gentry, a place to gossip, a place judge, and a place to stab one another in the back. The room is immaculate and the walls are covered with lustrous green wallpaper and gilded gold trim. Servants wait in attendance to answer the ladies’ every need, overseen by their leader, the butler. He stands along the green wall like a statue, observing but not listening to the scandals of the day.

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Unfortunately, the butler does not have many days left to observe, because he is being poisoned. And he will die a very unpleasant death soon enough. The local doctor will rule the cause of death as an unusually bad case of gastroenteritis. As I said, an unpleasant death. And so the question we must all ask is, who killed the butler? Did he hear something he wasn’t supposed to hear? Were there upstairs/downstairs issues at play? Or was there perhaps something amiss with his staff?  Later analysis will reveal that the butler did not have a contagious gastroenteritis but instead was the victim of a long-term poisoning by arsenic. Neither the ladies of the room nor the house staff will be implicated, except perhaps for the interior designer, because it turns out that the butler was poisoned by the green wallpaper that rubbed against his clothes hour after hour, day after day. How on earth could the wallpaper be the culprit, you ask? Because the dye used to color that wallpaper green was infused with arsenic. 

This may sound more fantastical than the notion that one of the guests poisoned the butler, but this was a real scenario. Green wallpaper in the 19th century was, in fact, largely made with arsenic. The off-gassing of that arsenic literally and actually killed people. And it was not just green wallpaper that arsenically poisoned people in the 19th century, as the heavy metal was used in a wide variety of everyday products. Products such as fabric, makeup, cardboard boxes, candles, oil paint, venetian blinds, soap, etc etc etc (a list from the Poisoner’s Handbook, by Deborah Bloom!) all contained arsenic.

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It wasn't that the Victorians thought that arsenic was harmless, as evidenced by this cartoon from the humor publication Punch. But producers of arsenical green dyes insisted, convincingly to many, that the product was safe if not ingested. William Morris, the namesake of arsenical wallpaper company Morris & Co, proclaimed that any allegation that arsenical products were dangerous was just rampant scaremongering. As he wrote to a friend in 1885, the “doctors were bitten as people were bitten by the witch fever.”

The history of business is littered with quotes just like this, from executives and others with a financial stake in something secretly dangerous. And statements like this surely have contributed to countless deaths and other maladies. We have always been surrounded by things that will do us ill, things that we would surely do without if we only knew of the dangers that lurk within. Torts, and products liability law in particular, can play a pivotal role in exposing the true nature of that which we think of as safe.

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Asbestos: A Magic Mineral?

Perhaps the best-known example of this is asbestos. Asbestos is an unusual product, a fibrous mineral that was widely used as a flame retardant, insulator, and other building material for a very long time. If you’ve watched television in the middle of a weekday, you’ve probably heard ads from questionable law firms pointing out that asbestos exposure causes mesothelioma, a very unpleasant and deadly cancer. And just like with arsenical wallpaper, asbestos producers proclaimed that any evidence that their product was dangerous was flawed.

I actually once had the good fortune of visiting the town Asbestos, Quebec, home of one of the world’s largest asbestos mines. It was a bizarre place where it felt almost like the inhabitants had never heard about the asbestos/cancer link. The town was so out of sync, in fact, that Comedy Central’s the Daily Show once did a segment interviewing/mocking the mayor as he tried to defend the town’s namesake product.  It turns out that despite being largely banned in Canada, the town’s mine was exporting asbestos to other countries, like India, that still allow the use of asbestos in building projects. Thankfully a shift in power between political parties in 2012 caused the Quebec government to cancel a $58 million loan to revive the asbestos industry and instead pledged to help the mining community diversify its economy. It is amazing that, despite our now-longstanding knowledge that asbestos is deadly, the mine in Quebec only closed in the last few years.

Both the asbestos and arsenical wallpaper examples make me seriously question what products that are common in our 2017 lives will someday be revealed to be horribly dangerous. It is inevitable, isn’t it? Every once in awhile we hear unverifiable concerns about the dangers of cell phones, but I suspect the toxin of our lives will be something we never saw coming. Maybe it’s in the water we drink, or the bottles we drink it from. Maybe it’s in our mass-produced clothing, or in an additive in all of our toothpaste. The likelihood is that there are almost certainly MANY things that we see as safe that are in fact dangerous. And just like arsenical wallpaper and asbestos, the manufacturers and distributors of those goods will likely have advanced warning about the threats they are peddling. But the threats to their bottom line will likely keep it under wraps until some bold plaintiff will bring a tort suit and unravel the whole thing.  

-Ellis and Acton

The Bags Won't Label Themselves...

Matriculating in law school is not all sunshine and roses. The first year has a well-deserved reputation for being brutal, a cross between boot camp and the Hunger Games.  Anecdote and evidence both suggest that the process somehow turns well-adjusted high achievers into a crowded field of anxious paper-pushers. Debts pile up. And yet so many people choose to partake in law school for so many reasons. Students sign up for pride, for achievement, and for the thrill of the [Paper] Chase. More than a few sign up in order to have a positive impact on the world. And many look forward to an ancillary benefit that will come regardless of whether they want it: the respect of their family and friends. Like it or not, our world is complicated, and lawyers know how it works better than most. And so there are exceptionally few lawyers (and even law students) who don’t regularly have friends and family ask “legal” questions.

There’s a whole breed of these “family lawyer” questions that starts with “is it legal to…?” Google autocomplete suggests people want to know “is it legal to record a conversation?” (editor’s note: depends on the state, but usually no). “Is it legal to smoke weed in Boston?” (yes, unless you’re driving), and my favorite “is it legal to own a fox?” (nope!). All three of these questions concern topics for which there are statutes, but often family “is it legal” questions involve topics a little too unusual for there to be a specific statute. And in those circumstances we have to look to torts and the common law. It’s a bit unwieldy, because tort law deals with civil rights of action between citizens rather than criminal actions by the state, but a civil precedent is still a binding judicial decree that a certain activity is considered outside the bounds of acceptable behavior.

The beauty of our common-law torts system is that it is flexible. Judges and juries can take precedents and apply them to novel fact patterns that have never before been considered. In a way, a tort lawsuit can be an end-around the legislative process. It is a way that even a single ordinary citizen can change what is or isn’t “legal.”

This is a very long-winded way of bringing us to our next theory of torts, Norm Setting. In our last theory of torts article we said that while many tort cases are about making the injured whole, there are still many other cases in which we observe other motivations at play. And very high on that list of motivations is the desire to change the behavior of a particular party or class of actors. Ralph Nader’s amazing American Tort Law Museum in Connecticut has a number of exhibits dedicated to just these kinds of cases.

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The classic example is Grimshaw v. Ford Motor Company, in which the plaintiff sued Ford regarding the disastrously-designed Ford Pinto. Ford had rushed the Pinto to market despite knowing that it had a tendency to explode if its gas tank was punctured in a collision. The 1978 jury awarded $2.5 million in damages and an additional $125 million in punitive damages. According to the Tort Law Museum,

“The Grimshaw case sent a message to automakers that if they chose to ignore safety considerations, it would be at their own financial peril. This case helped push the automobile industry away from 'safety doesn’t sell' and toward emphasizing new safety features in their marketing.”

From our own files, we have the case Emery vs. Federated Foods. As we discussed in a different article, in Emery, a three year old boy choked on a marshmallow and was left with severe, irreparable brain damage. When teaching this case we discuss whether a manufacturer has a duty to warn about dangerous products. In this instance, the court found that the defendant should have printed warnings about the dangers of marshmallows for children on their product bags. Although we haven’t been able to find direct proof of a link between the Emery decision and the current practice of marshmallow manufacturers putting warning labels on their products, there’s a very good chance that there is a causal connection. If so, it’s an excellent example of tort law changing behavior, in this case the behavior of manufacturers adding warnings to marshmallow bags.

But warnings don’t matter if no one heeds them. While we want tort law to influence the behavior of manufacturers, we also want it to ultimately change the behavior of end users.  We want manufacturers to make their products safer and to alert us to inherent dangers, but we also want end users to change how they handle the goods. A helpful example here might be plastic bags and children. Parents far and wide now know that plastic bags are little death traps for a small child because the thin plastic easily sticks to their mouth and nose, causing them to suffocate. But plastic bags aren’t that old (in the grand scheme of things), and the nearly-ubiquitous warnings on the bags themselves have undoubtedly played a role in educating parents.

According to the Consumer Products Safety Commission, around 25 children still die every year from bag asphyxiations. But that number would certainly be higher without the warnings. Currently only five states require warnings: California, Massachusetts, Rhode Island, New York, and Virginia. But a quick survey of bags from friends and relatives indicates that even outside of these states, bags have warnings without there being a statute in place. For example, a bag from New Hampshire we looked at had the following warning:

"WARNING: To avoid danger of suffocation, keep this plastic bag away from babies and children. Do not use this bag in cribs, beds, carriages or play pens. This bag is not a toy."

If there is no statute, tort law has played a role in the presence of that warning. It has established a norm among bag manufacturers and/or retail stores that says we need to have warnings on plastic bags. These companies know that if they don’t have the warning and something bad happens, they likely will be found to be negligent in the eyes of a court, even if there is no statutory requirement. And we might then say to our friends and relatives that handing out plastic bags without such a warning is “illegal.”

Torts is a direct way that citizens can change the law.  It is a way we can make something that would otherwise be legal illegal.  In the last article that we wrote about theories of torts, we talked about why you might not sue even when you have suffered harm. This article demonstrates that you might sue for an entirely different reason: because you want to change the law.  And in those cases, being “made whole” may have nothing to do with it at all.

-Ellis

Where There's Smoke, There May Be Hay

Anybody who wants to understand the law would be well served to read and/or watch Bleak House by Charles Dickens. Consuming Bleak House is a gargantuan task, perhaps intentionally reflecting the ceaseless complexity of the legal case it chronicles, Jarndice vs. Jarndice. The elevator pitch is that two branches of a family fight over an estate for such a long time that the estate is completely drained by legal fees. It’s a valuable lesson (even cited by courts!), and one that I bring up often when trying to talk friends off of the litigation ledge.

But Bleak House would not be Dickensian if it were just the story of a lawsuit. There are countless twists and turns that play out through betrayals and in hushed tones. And because nothing in Bleak House is straightforward, there is even a case of spontaneous human combustion. Deep in the recesses of Chapter 32, Mr Krook, a ragged old man who subsists on a diet of gin, catches fire and dies. This perhaps reflects the belief of the time that drinking excessive amounts of alcohol turned the human body into a flammable substance. Regardless, it brought spontaneous human combustion into the public imagination and it hasn’t really ever left.

The concept of spontaneous human combustion is controversial, in the sense that many people believe it is real but most serious scientific minds don’t think it exists. A classic rendition would have somebody stumbling upon a pile of ashes where once stood a person. The surrounding environment would give no indication of a larger conflagration. There are countless examples of this purportedly occurring, although over time instances have subsequently been explained--such as when an Oklahoma man was found to have had a heart attack and fallen atop a lit cigarette.

This is about the time in the article where I turn my attention towards torts. And while I am not qualified to pass a legal judgment on spontaneous human combustion, I can indeed discuss its very close and very real cousin: spontaneous combustion. Yes, there are inanimate objects in this world that will catch fire all on their own. They need no flame, and feature no electricity or batteries. This is a real thing and people die because of it more often than you’d think.

Example one of a spontaneously combustible thing is a rag or other implement used to apply an oil-based stain and finish to woodwork. As they dry, these substances go through a process of oxidation, a chemical process that can generate enough heat to actually ignite a rag. This is particularly likely when the rags are bunched up in a way that prevents cooling air flow. The phenomenon is fairly well-known among woodworkers, but it is far less known among very amateur homeowners. Picture your average Jane or Joe picking up a quart of an oil-based finish to touch up the deck, and you very well may be imagining the precursor to a fire. Examples of this are endless. Manufacturers do their best to warn of the danger, but we live in a world of unheeded warnings. They also have a fairly fail-safe procedure for dealing with such rags: after use, the rags should be put into a water-filled, sealed can (like a paint can) or laid out to dry on a pavement or concrete surface for at least two days. But that’s a lot to ask of some people, and as long as the curing process for these oil-based products doesn’t change, there will be fires.

So if Joe Homeowner starts a fire because he did not understand the warnings and that fire harms somebody else, might liability extend to the manufacturer of the products? Water-based wood finishes exist that don’t have this danger, and one could imagine a world in which all wood finishes must be water-based. The argument is that the end product is not as beautiful, but how beautiful must a product be for us to accept accidental fires?

If not extended to the manufacturer, liability would presumably rest squarely on the shoulders of our homeowner. Such was the case in Vaughn v. Menlove, a historic case involving a different class of auto-igniting materials: hay. It turns out that as wet hay decomposes, heat is generated to such a degree that the hay catches fire. In order to prevent such fires, farmers know never to stack hay unless it is entirely dry. The defendant in this case apparently didn’t get the message, and the resulting fire consumed much of the plaintiff’s property. In court, the defendant argued that while most farmers know that you shouldn’t stack wet hay, he did not, and therefore should not be held responsible.  The court ruled in favor of the plaintiff, holding that the threshold question must ask what is reasonable to an ordinary person. Without such a standard, defendants could always escape liability by proclaiming ignorance.

The homeowner’s ignorance in our deck oil example seems different from that in Vaughn, in that a reasonable homeowner very well might not know about the dangers of improperly stored oil-soaked rags. Still, it is hard to argue that such ignorance should protect the homeowner when confronted by an aggrieved plaintiff in court. Hardly Jarndice vs. Jarndice, one would imagine that the plaintiff would make quick work of a defendant making such an argument.  

What Happened to Chad

For most of our cases, we try to figure out whether there is sufficient evidence for summary judgment, whether the case is a nonsuit, etc. Only a small portion of the opinions reveal a final resolution and an actual damages award if the plaintiff prevailed. We'll talk about damages quite a bit next week, but those are edge cases-- cases specifically selected to teach the boundaries of a difficult damages question. I think it's instructive to learn about the damages awards in "regular" damages cases, and so several years ago, while teaching a torts reading group, I took it upon myself to try to figure out how much winning plaintiffs were actually awarded. It's a tough assignment, but sometimes the results were incredibly revealing...and none more so than Emery v. Federated Foods.

In Emery, a three year old boy choked on a marshmallow and was left with brain damage. We teach the case in the context of whether a manufacturer has a duty to warn about dangerous products. In this instance, the court found that the defendant should have printed warnings about the dangers of marshmallows for children on their product bags. That might seem a bit of an overreach, but marshmallows are in fact quite dangerous due to the way they expand when exposed to moisture. The plaintiff won and was awarded $1 million from the manufacturer and $178,000 from two treating physicians, although the total number dwindled to somewhere in the $400-500k range after medical expenses and legal fees were paid. The court appointed a prominent local businessman, Richard Dasen, conservator to maintain Chad's funds and distribute them according to his ongoing needs.

It's important to note that Chad's lingering disability was and is profound, as he is often referred to as "vegetative." His mother, the plaintiff Laura Emery, attempted to care for the boy during the first few years after the case but proved unfit for the task, with the state removing him from her care after his case workers had "found [Chad] with open sores and suffering from malnutrition, dehydration and lack of care." [I'll cite below] All the while she received some payments from conservator Dasen. Five years after the award, however, Dasen filed a one-line letter with the court saying that all the money was gone (specifically, "To Whom It May Concern: As of July 2000, cash and savings for the trust account for Laura Emery (Chad Emery's mother) were depleted to a zero balance.''). At this point it's time for the big reveal, and that is that conservator Richard Dasen was an extraordinary scoundrel/criminal. While considered a pillar of the community, he actually was the focal point of a huge methamphetamine and prostitution scandal--the crux of it being that Dasen would find and identify attractive young methamphetamine addicts and coax them into prostitution in exchange for bankrolling their drug habit---to the tune of millions of dollars of payouts. An article in the Economist even implies that Dasen was personally responsible for a spike in drug problems in his city. Another article reports that a jury awarded $2 million to one of his [very young] female victims. Neither article mentions poor Chad Emery, the nearly-brain-dead boy whose funds were supposed to be expertly guided by this pillar of the community, but instead mysteriously vanished at the same time that he was paying millions for drugs and sex.

Other articles do make the connection. Nobody has yet proven that Chad's money was used in the meth/prostitution scheme, but the facts of that case, combined with the suspiciously quick evaporation of Chad's trust fund, raise serious questions. There are some accounts that say the money was tracked to Laura Emery, who was undoubtedly unprepared to care for a vegetative boy, and other accounts that say those claims were fabricated. It's hard to divine the truth. All we know is that there was a torts case that made it to our casebook to show that manufacturers might have a duty to warn, that the court awarded a sum and that said sum was gone in five years. As far as I know Chad Emery remains alive in an institution in Washington state, with his care paid for not by the marshmallow company or the conservator but by the federal government.

We read tort cases a bit like we watch a police procedural: there's an agreed-upon set of rules and tropes, and we turn the pages to find out who "won" and why. But for many plaintiffs, the conclusion of their cases are just the beginning of a lifelong ordeal. As past, current, and future attorneys, it's important to keep that in mind.

-Ellis