One of the disturbing trends in the tort system is the expansion of liability among the multiple axes of time and causation. For centuries, a fraud case required a plaintiff who was injured when he or she relied upon a material misrepresentation. More and more, plaintiffs’ attorneys are asking courts to disregard the black-letter requirement of reliance, and simply punish a defendant for an ostensible lie. In some cases, a constitutionally questionable statute permits a lawsuit against a corporation even where the plaintiff has no dealing with the corporation. (See Jul. 1). In others, judges who should know better endorse huge expansions of tort law.
A recent New York appellate court case, Ruffing v. Union Carbide, adopted such an argument in a 3-2 decision. The plaintiff’s mother, Heather Curtis, was allegedly lied to by IBM 23 years earlier; the statute of limitations has run for her, however, so she cannot bring a case. But her minor daughter, Candac?–who was unborn when the alleged misrepresentation occurred–claims a fraud cause of action that is now allowed to go forward. (Candac? suffers from severe birth defects; Ms. Curtis’s other two children do not.) The plaintiffs’ attorney is gleeful about the impact on corporations: “there are very severe legal consequences that they face — uninsurable legal consequences”. IBM denies that there are more instances of birth defects in the children of its employees than among the population in general, but if the causation requirement of reliance can be removed at the stroke of a pen, what’s to stop a court from removing the rest of the causation requirement and just hold IBM strictly liable for any birth defects its workers suffer? (Tom Perrotta, “Woman Can Sue Over ‘Lie’ to Mother”, New York Law Journal, Sep. 25; Bob Herbert, “I.B.M. Families Ask Why?”, New York Times, Sep. 15 archive).
In the decision below, the district court got it right. “‘[I]njury, no matter how horrible in dimension, cannot substitute for evidence that another is responsible for its cause,’ [Judge] DiBlasi wrote. ‘Thus, notwithstanding the emotional weight behind their arguments, plaintiffs cannot be granted an exception from the proof standards that apply to all others harmed in the manner that is alleged in this case….No one, parent or not, could view the effects of these birth defects and fail to be moved. But the life that Zachary will experience cannot be determinative of the many difficult issues that are involved in this litigation.'” (Michael A. Riccardi, “IBM Toxic Tort Plaintiffs Face Strict Causation Test”, New York Law Journal, Jan. 24, 2001).
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