By: Nick Christopherson

Travis Scott’s recent Astroworld music festival drew an estimated 50,000 fans to NRG Park in Houston on Friday, November 5.[1] Beginning in 2018, with the release of Scott’s new album, Astroworld, the annual music festival was an immediate hit and solidified Scott as an A-list celebrity for years to come.[2] The concert series has gained incredible momentum since its debut, and following a Covid-mandated cancellation in 2020, fans, artists, and industry ticket promoters arrived anxious to resume the music in 2021.[3]

However, the festivities came to a crashing halt after a crowd surge crushed hundreds of fans at the front of the pit.[4] Hundreds suffered injuries from asphyxiation—a lack of oxygen due to the pressure of the crowd—which caused many to fall unconscious or suffer heart attacks.[5] Hundreds were transported to the hospital, and eight died.[6] People described the scene as “a concert from hell” as bystanders performed CPR on strangers, ambulances wove in and out of the crowd, and people screamed “I can’t breathe.”[7] During the chaos, Travis himself continued performing, only stopping briefly to crowd surf an unconscious fan to safety before resuming his raucous act.[8]

So far, more than ninety civil actions have been filed over the incident naming Live Nation, Scott, and other artists who performed at the event as defendants.[9] One complaint alleges that Scott and Live Nation failed “to provide a safe environment at the Astroworld Festival . . . to provide adequate security . . . to adequately hire medical personnel . . . [and] to adequately respond to recurrent medical issues.”[10] The complaint further alleges gross negligence, claiming that defendants “knew, or had reason to know, of an unreasonable and foreseeable risk of harm to Plaintiff.”[11] But who is really to blame in this tragedy? And how should the law change to prevent this type of accident in the future?

Fortunately, a number of crowd crush cases exist to guide courts’ analyses in this matter.[12] When analyzing a negligence claim, a court will consider if the defendant had a duty to act reasonably, then a jury will determine whether the defendant breached this duty, whether the defendant’s breach was the “but for” cause of the plaintiff’s injury,[13] and whether a defendant’s actions were sufficiently linked to the plaintiff’s injury so as to find the defendant liable.[14]

Duty and “but for” causation are easy to establish. Plaintiffs can establish duty because, in tort law, business owners owe paying customers (such as sporting fans, concertgoers, or event attendees) special protections from unreasonable dangers.[15] The Restatement (Second) of Torts addresses crowd security in § 344 which states:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care . . .[16]

Due to the obvious applicability of this rule, duty is rarely litigated over in crowd crush cases.[17] Similarly, plaintiffs can also easily satisfy the requirement of “but for” causation in the Astroworld case because “but for” the concert’s existence, people would not have been crushed by a crowd.

The elements of breach and proximate causation are more difficult to predict. In determining breach, juries determine whether the defendant acted reasonably—whether defendant’s actions were similar to those of a reasonable person under the circumstances. Plaintiffs can prove this element by showing that the defendant failed to “guard customers, patrons, and other invitees from injury by either a crowd or one of its members through the use of ushers, guards, or other attendants, or by means of physical devices such as barricades, ropes, or railings.”[18]

There are conflicting views as to whether the defendants acted reasonably. On the one hand, the court-ordered investigators noted that “organizers added stronger fencing, more barricades, additional space for crowd control, and more security personnel, in light of the crowd control issues at the 2019 Astroworld show.”[19] On the other hand, the event’s fifty-six page security and emergency response plan failed to account for the occurrence of a crowd surge.[20] Nor did the organizers call off the show despite hundreds of people breaking through the concert gates earlier in the day.[21] Due to these conflicting facts, it is hard to predict whether a jury will find the organizers’ efforts to have been reasonable.

But the real lynchpin of these future lawsuits will be proximate causation,[22] which many courts determine by asking the jury to consider whether the plaintiff’s harm was foreseeable.[23] Foreseeability will be hard for both Scott and Live Nation to refute. For Scott, the artist has a history of producing violent and chaotic shows.[24] In 2015, Scott was arrested at his own concert in Lollapalooza for the charge of “inciting a riot.”[25] He was arrested two years later, in 2017, at the Walmart Arkansas Music Pavilion under the same charge.[26] In another concert, Scott spit and yelled at an audience member thought to have stolen Scott’s shoe, telling the crowd to “Get that b*tch” and to “F**k him.”[27] The artist has also encouraged fans to “rage” at his concerts and to create an atmosphere that mirrored the chaos of the World Wrestling Federation.[28] Based on this conduct, a jury will likely find fans’ injury foreseeable in the Astroworld case.

Live Nation should also have foreseen concertgoer injury. In 1979, eleven concertgoers were killed from a crowd surge similar to the one at Astroworld.[29] The source of the problem was determined to be “festival seating,” or general admission seating.[30] After the tragedy, Cincinnati city council banned festival seating at any venue in its jurisdiction, but the ban was lifted some twenty years later to accommodate the preferences of Bruce Springsteen.[31] Further, Live Nation need not look beyond its own history to see the problems with general admission seating. The Houston Chronical published that Live Nation has been connected to roughly 200 deaths and at least 750 injuries since 2006.[32] In fact, the company’s annual report lists “variability in venue security standards and accepted practices”[33] and “unintentional mass casualty incidents”[34] as some of the company’s most significant risks. Because these defendants should have foreseen these injuries, plaintiffs are likely to satisfy the proximate cause element of their claim. Thus, the outcome of these suits will likely be out-of-court settlements with the families of the victims.[35]

Nevertheless, while social media users have been quick to blame Travis Scott and “corporate greed” for this tragic outcome,[36] spectators have overlooked the primary culprit—America’s lack of crowd management regulations. A vast body of research exists on the scientific principles of crowds and their inherent dangers,[37] yet there is virtually no statutory law in the United States regulating crowd management and control.[38] This lack of regulation leaves injured concertgoers with only the long, expensive, and unpredictable remedies involved in a negligence suit. If left to continue, this statutory gap will continue to claim more lives.

[1] McKenzie Sadeghi, Fact check: Post falsely claims Astroworld venue had maximum capacity limit of 20,000 people, USA Today (Nov. 11, 2021),

[2] Julian Kimble, Travis Scott is one of the most electrifying performers of our time, Wash. Post (Nov. 30, 2018),

[3] Ana Gonzalez, AstroWorld Festival 2020 has been postponed, but Travis Scott says event will make a return in 2021, Click 2 Houston (Nov. 18, 2020),

[4] Chris Boyette, Travis Scott was previously charged in connection with crowd mayhem, CNN (Nov. 8, 2021),

[5] David Goodman & Maria Jimenez Moya, ‘No Way Out’: A Sudden Life-and-Death Struggle at a Houston Concert, N.Y. Times (Nov. 6, 2021),

[6] Id.

[7] Cam Tyeson, A Horrifying Eyewitness Account From Travis Scott’s Astroworld Disaster Called it a ‘Concert in Hell,Pedestrian TVK (Nov. 6, 2021),; Tiffany Huertas, ‘I can’t breathe’: San Antonio woman describes chaos at Travis Scott concert, KSAT (Nov. 8, 2021),

[8] Mark Savage, Travis Scott festival tragedy: Were warning signs missed at Astroworld, BBC News (Nov. 9, 2021),

[9] Ray Sancez, Rosa Flores & Ed Lavandera, Deadly Astroworld Festival spiraled out of control for hours, Houston FD logs show, CNN (Nov. 12, 2021),; Nicolaus Li, Travis Scott Reportedly Facing Over 30 Lawsuits Following Astroworld Tragedy, Hypebeast (Nov. 10, 2021),

[10] Plaintiff’s Original Petition and Application for Temprorary [sic] Restraining Order and Temporary Injunction at 13, Villanueva v. ASM Global, LLC, Courthouse News,

[11] Id. at 10.

[12] See, e.g., Pooser v. Cox Radio, Inc., No. 04-08-00270-CV, 2009 WL 200449 (Tex. Ct. App. Jan 28, 2009) (involving plaintiff suing radio station after becoming injured in a standing-room-only section of a concert); Cunningham v. D.C. Sports & Ent. Comm’n, No. Civ.A. 03-839RWRJMF, 2005 WL 3276306, (D.D.C. Nov. 30, 2005) (involving crowd-surge related injuries at an Eminem concert); Prettyman v. Trenton Transportation Co., 73 Pa. Super. 353 (1919). For a full discussion of current crowd crush jurisprudence, see Tracy Hresko Pearl, Crowd Crush: How the Law Leaves American Crowds Unprotected, 104 K.Y. L.J. 1 (2016).

[13] Stuart M. Speiser et al., 2A American Law of Torts §9:3, (Monique C. M. Leahy ed., 2021) (“The essential elements for a negligence or gross negligence claim are: (1) the existence of a duty on the party of the defendant to conform to a specific standard of conduct to protect the plaintiff: (2) breach of that duty by the defendant; (3) injury to the plaintiff actually and proximately caused by the defendant’s breach”).

[14] Id. (stating that “to support a finding of proximate cause, there must be some evidence indicating that a foreseeable injury did in fact result from the negligence”).

[15] See Pearl, supra note 12, at 18. See also Robert Lind et al., Entertainment Law 3d: Legal Concepts and Business Practices § 10:36, Westlaw (database updated 2021) (“The venue owner and operator have a duty to provide reasonably safe means of ingress and egress, a duty to use ordinary care to keep the premises safe, a duty to discover and correct or warn of any dangerous conditions and a duty to protect attendees from negligent activities.”).

[16] Restatement (Second) of Torts §344 (Am. L. Inst. 2021).

[17] See Pearl, supra note 12, at 17.

[18] 8 Frumer & Friedman, Personal Injury Actions, Defenses, and Damages § 42.01 (Matthew Bender, rev. ed. 2015)

[19] Vanessa Romo, Astroworld’s safety plan called for deceased to be referred to as ‘smurfs’, NPR (Nov. 10, 2021),

[20] Id.

[21] Spencer Kornhaber, The Bleak Lessons of the Astroworld Nightmare, The Atlantic (Nov. 10, 2021),

[22] Steven A. Adelman, Won’t Get Fooled Again: Overcrowding at Concerts Causes Injury and Death—Despite Industry Denials. Don’t Be Fooled: Crowd Crush Cases Turn on Straightforward Questions of Foreseeability and Duty of Care, 40 JUN Trial 18, (2004) (discussing the past issues courts have focused on in crowd crush cases).

[23] See, e.g., Massey v. Jim Crockett Promotions, Inc., 400 S.E.2d 876 (W. Va. 1990) (considering whether it was foreseeable that there would be an altercation as a result of wrestlers and manager provoking the crowd).

[24] See Jack Morphet & Jorge Fitz-Gibbon, Travis Scott concerts known for violence and injuries, reports show, N.Y. Post (Nov. 7, 2021),

[25] Jake Woolf, Travis Scott on the Show that’s So Crazy, It Caused a Riot, GQ (May 15, 2017),

[26] Id.

[27] Alana Mastrangelo, Video resurfaces of rapper Travis Scott spitting at fan, calling crowd to “F**k Him Up”, GWN (Nov. 8, 2021),

[28] Rachel DeSantis, Travis Scott Talks ‘Raging’ in Resurfaced Video: ‘Always Wanted to Make It Feel Like It Was the WWF’, People (Nov. 8, 2021),

[29] Palmer Haasch, Crowd surges like the one at Travis Scott’s Astroworld concert have a long history, Insider (Nov. 11, 2021),

[30] Id.

[31] John Fox, Festival Seating Return is Past Due, City Beat (Aug. 14, 2002),

[32] Gabrielle Banks, Astroworld promoters oversaw other events where concertgoers trampled fellow fands, broke barricades, Houston Chronicle (Nov. 6, 2021),

[33] Live Nation Entertainment, Inc., Form 10-K, 23 (2021).

[34] Id. at 28.

[35] Andy Greene, Lawyers See ‘Huyndreds of Millions’ in Settlements—and Possibly Criminal Charges—in Atroworld Tragedy, Rolling Stone (Nov. 9, 2021),

[36] See, e.g., Ellen Durney, Travis Scott And Drake Are Being Sued For Negligence And “Inciting The Crowd” At The Astroworld Festival That Killed At Least 8 Fans, Buzz Feed News (Nov. 8, 2021),; J.D. Smith, Live Nation, not Travis Scott, caused the Astroworld tragedy, Black Media Daily (Nov. 13, 2021), (claiming the tragedy was “a corporate greed issue on the part of Live Nation”).

[37] For example, one study gave a disturbing description of the realities within a crushing crowd:

At occupancies of about 7 persons per square meter the crowd becomes almost a fluid mass. Shock waves can be propagated through the mass sufficient to lift people off of their feet . . . . People may be literally lifted out of their shoes, and have clothing torn off. Intense crowd pressures, exacerbated by anxiety, make it difficult to breathe. The heat and thermal insulation of surrounding bodies cause some to be weakened and faint. Access to those who fall is impossible. Removal of those in distress can only be accomplished by lifting them up and passing them overhead to the exterior of the crowd.

John J. Fruin, The Causes and Prevention of Crowd Disasters, Crowdsafe 3 (2002),; Eugene Trivizas, Crowd Dynamics and the Prevention and Control of Collective Disorders, 56 Police J. 142, 143 (1983); John J. Fruin, Crowd Dynamics and Auditorium Management, Crowd Safety & Risk Analysis, Auditorium News (May 1984),; Keith Still et al., Place crowd safety, crowd science? Case studies and application, 13 J. of Place Mgmt. & Dev. 4 (2020); Ris S.C. Lee & Roger L. Hughes, Exploring Trampling and Crushing in a Crowd, 131 J. Transp. Eng’g 575 (2005); G. Keith Still, Static Crowd Density (General), Crowd Safety & Risk Analysis, (last visited Nov. 14, 2021); Dirk Oberhagemann, Static and Dynamic Crowd Densities at Major Public Events, VFDB Technical Rep. (Mar. 2012),; Anders Johansson et al., From Crowd Dynamics to Crowd Safety: A Video-Based Analysis, 11 Advances in Complex Sys. 497 (2008).

[38] See Pearl, supra note 12, at 1.

By Wiley Hughes

Earlier this year, from February 10 to February 20, a series of devastating winter storms ran their devastating course through the state of Texas.[1]  The storms brought record low temperatures and an unprecedented amount of snow and ice to the state’s largest cities.[2]  This overwhelmed the state’s power grid which triggered rolling blackouts and multi-day blackouts that left millions of Texans without power for days in subfreezing temperatures.[3]  The storms left approximately seventy people dead[4] and caused over $195 billion of damages—the costliest disaster in Texas history.[5]  

In order to avoid federal regulation of its electrical system, Texas maintains its own separate electrical grid—the Texas Interconnection—from the other two electrical grids that supply Americans with power.[6]  This separate grid has allowed the Texas legislature to substantially deregulate its electrical grid—contending that it produces a variety of electricity providers for consumers to choose from and supplies cheaper electricity rates.[7]  In 1999, the Texas legislature enacted Chapter 39 of the Texas Public Utility Regulatory Act (“PURA”) to restructure the electric utility industry in Texas.[8]  Pursuant to the Act, the Public Utility Commission of Texas (“PUC”) was required to certify an “independent system operator” (“ISO”) to, among other functions, “ensure the reliability and adequacy of the regional electrical network.”[9]  In 2001, the PUC certified the Electric Reliability Council of Texas (“ERCOT”) as the ISO.[10]  ERCOT is a 501(c)(4) nonprofit corporation and is subject to oversight by the PUC and the Texas legislature.[11] 

One of the leadings causes for the staggering amount of damages from the storms is ERCOT’s failure to winterize the state’s electrical equipment.[12]  Interestingly enough, Texas does not require that its electricity-producing infrastructure to be winterized to such a degree; nor does Texas—unlike most other states—compensate generation companies for maintenance.[13]  However, in 2011, after Texas faced a winter storm that similarly overwhelmed the power grid the Federal Energy Regulatory Commission produced a report that warned Texas politicians and regulators that winterizing of the power grid was necessary.[14]  This report was largely ignored.[15]  ERCOT officials claim that the 2021 winter storms far exceeded what ERCOT projected to prepare for the winter, and that it previously appeared there was more than enough supply to meet demand.[16] 

Now many Texans are filing lawsuits against ERCOT for damages they sustained from its failure to prepare for the winter storms.[17]  For example, one suit seeks $100 million in damages for the death of an eleven-year-old boy who died of hypothermia because his home did not have power.[18]  Unfortunately for Texans seeking relief, ERCOT may be entitled to sovereign immunity even though it is a private corporation.[19] 

Sovereign immunity is the well-established common law doctrine “that ‘no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.’”[20]  The doctrine protects a state from lawsuits for money damages and other forms of relief, and leaves to its legislature “the determination of when to allow tax resources to be shifted ‘away from their intended purposes toward defending lawsuits and paying judgments.’”[21]  Although this provides the public with the benefit of preventing a disruption of key governmental services due to litigation, sovereign immunity places the burden of shouldering costs on the individuals injured by state action.[22]  While the legislature determines when and to what extent to waive that immunity, it is up to the judiciary to determine under what circumstances sovereign immunity exists in the first place.[23]  In certain circumstances, private entities may be entitled to sovereign immunity because the determination of whether immunity exists focuses not on the definition of a governmental unit, but on the “nature and purposes” of sovereign immunity.[24]  

In 2018, in Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund, LLC,[25] the Texas Court of Appeals held that ERCOT was entitled to sovereign immunity.[26]  In Panda Power, a company spent $2.2 billion to build three power plants based on ERCOT’s reports on the capacity, demand, and reserves (“CDRs”) in the ERCOT power region.[27]  When ERCOT made new CDRs that differed from the ones the company based its power plant plans on, the company sued ERCOT for fraud, negligent misrepresentation, and breach of fiduciary duty.[28]  ERCOT argued that the company’s claims are barred because Texas’s sovereign immunity extended to them.[29]  

In holding that ERCOT was entitled to sovereign immunity, the court focused on the disruption of services that would entail from a serious financial judgment against ERCOT and the quasi-governmental nature of ERCOT that makes it a necessary component of the Texas legislature’s electric utility scheme.[30]  The court held that section 39.151 of PURA shows the legislature intended that “determinations respecting system administration fees and ERCOT’s fiscal matters, as well as any potential disciplinary matters or decertification, should be made by the PUC rather than the courts.”[31]  Further, the court reasoned that as the certified ISO, ERCOT is a necessary component of the legislature’s electric regulatory scheme; thus, a substantial judgment could necessitate a potentially disruptive diversion of ERCOT’s resources or a decertification not intended by the PUC.[32]  Moreover, the court analogized ERCOT to federal self-regulatory organizations (“SROs”) as quasi-governmental agencies that perform vital governmental functions.[33]  SROs are protected by absolute immunity in the performance of their statutorily delegated functions because they perform “a variety of functions that would, in other circumstances, be performed by a government agency.”[34]  Like SROs, “(1) ERCOT is a private corporation exercising power delegated to it by an administrative agency pursuant to legislation; (2) ERCOT’s power includes rulemaking authority that is binding on market participants; and (3) ERCOT is subject to broad oversight by the PUC, which can decertify it.”[35]  Thus, the court concluded ERCOT is entitled to sovereign immunity from private damages suits in connection with the discharge of its regulatory responsibilities.[36] 

The ruling in Panda Power is currently under review by the Texas Supreme Court and could be decided by the end of its current term, which ends in June.[37]  If the Texas Supreme Court affirms the ruling it could have a substantial effect on Texans’ ability to recover damages from ERCOT’s failure to adequately prepare for the winter storms.  The sovereign immunity applied to ERCOT in Panda Power would most likely be applicable to claims related to the winter storm.  There are no mandatory regulations in Texas—only voluntary guidelines—for generation companies to winterize their equipment to the best practice standard produced by the North American Electric Reliability Corporation.[38]  Thus, when ERCOT decided that the Texas power grid was sufficiently winterized, it was using the discretion to discharge its “regulatory responsibility” to “ensure reliability and adequacy of the regional electrical network” granted to it by the PUC and the Texas legislature.[39]  Therefore, Texans’ common-law claims against ERCOT will most likely be barred by sovereign immunity.  

Furthermore, Texans may also be out of luck in their attempts to recover damages from ERCOT under the Texas Tort Claims Act.[40]  The Act provides a waiver of Texas’s sovereign immunity with respect to liability and suits against governmental units for property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his or her employment.[41]  However, the damages must have arisen from the operation or use of a motor-driven vehicle or motor-driven equipment or caused by a condition or use of tangible personal or real property.[42] 

Therefore, Texans who sustained damages from the winter storms may not have an available remedy to recover from ERCOT.  This leaves Texans little choice but to pursue claims against their private electricity providers for price gouging and damages caused by rolling blackouts.[43]  More than likely this will mean that many Texans will not be fully compensated and will now have a financial disaster on their hands.

[1] 2021 Texas Power Crisis, Wikipedia, (last visited Mar. 118, 2021). 

[2] Christina Maxouris, Here’s How a Week of Frigid Weather and Catastrophe Unfolded in Texas, CNN, (Feb. 21, 2021, 4:32 PM). 

[3] Lynn Doan, How Many Millions Are Without Power in Texas? It’s Impossible to Know for Sure, Time (Feb. 17, 2021, 1:11 PM),  

[4]Celine Castronuovo, Close to 70 Dead in States with Severe Winter Weather: Report, The Hill (Feb. 20, 2021, 11:04 PM),  

[5] Irina Ivanova, Texas Winter Storm Costs Could Top $200 Billion — More Than Hurricanes Harvey and Ike, CBS News (Feb. 25, 2021, 3:59 PM),,as%20much%20as%20%24295%20billion

[6] See Kate Galbraith, Texplainer: Why Does Texas Have Its Own Power Grid?, Tex. Trib., (Feb. 15, 2021). 

[7] See Will Englund et al., Texas, the Go-It-Alone State, Is Rattled by the Failure to Keep the Lights On, Wash. Post (Feb. 18, 2021, 4:34 PM),  

[8] Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 552 S.W.3d 297, 301 (Tex. App. 2018), rev. granted, 2020 Tex. LEXIS 496 (Tex. June 5, 2020); see Tex. Util. Code §§ 39.001-.916 (2020). 

[9] Tex. Util. Code § 39.151(a)(2).  The Act also required PUC to certify an ISO to ensure access to the transmission and distribution systems for all buyers and sellers of electricity on nondiscriminatory terms; ensure that information relating to a customer’s choice of retail electric provider is conveyed in a timely manner to the persons who need that information; and ensure that electricity production and delivery are accurately accounted for among the generators and wholesale buyers and sellers in the region.  Id. § 39.151(a)(1)–(4).  

[10] Panda Power, 552 S.W.3d at 301. 

[11] About ERCOT, ERCOT, (last visited Mar. 18, 2021).  

[12] See Veronica Penney, How Texas’ Power Generation Failed During the Storm, in Charts, N.Y. Times (Feb. 19, 2021),; Cassandra Pollock & Alex Samuels, Gov. Greg Abbott, Other Top Texas Officials Call for Resignations and Investigations at Electrical Grid Operator, Tex. Trib. (Feb. 16, 2021, 7:00 PM),

[13] Erin Douglas et al., Texas Leaders Failed to Heed Warnings That Left the State’s Power Grid Vulnerable to Winter Extremes, Experts Say, Tex. Trib., (Feb. 19, 2021); see Englund et al., supra note 7; Will Englund, The Texas Grid Got Crushed Because Its Operators Didn’t See the Need to Prepare for Cold Weather, Wash. Post (Feb. 16, 2021, 5:40 PM),

[14] Douglas et al, supra note 13. 

[15] Id.  

[16] Erin Douglas, Texas Was “Seconds and Minutes” Away from Catastrophic Monthslong Blackouts, Officials Say, Tex. Trib. (Feb. 18, 2021, 6:00 PM),  

[17] Jody Barr, ERCOT Could Be Immune from Winter Storm Lawsuits, KXAN (Feb. 26, 2021, 6:52 PM),  

[18] Id. 

[19] See id. 

[20] Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2014) (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)). 

[21] Id. (quoting Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)). 

[22] Id. 

[23] Id. at 122. 

[24] Univ. of the Incarnate Word v. Redus, 518 S.W.3d 905, 911 (Tex. 2017). 

[25] 552 S.W.3d 297 (Tex. App. 2018), rev. granted, 2020 Tex. LEXIS 496 (Tex. June 5, 2020). 

[26] Id. at 300–01. 

[27] Id. at 301. 

[28] Id. at 300–01. 

[29] Id. 

[30] See id. at 312–19.  

[31] Id. at 315. 

[32] Id. 

[33] See id. at 315–19.  SROs have largely existed in the federal securities regulatory scheme, but the court found that the reasoning behind giving SROs immunity extends beyond the securities context.  Id. 

[34] Id. at 315–16.  “This immunity extends both to affirmative acts as well as to an SRO’s omissions or failure to act.”  Id. at 316 (quoting Standard Inv. Chartered, Inc. v. NASD, 637 F.3d 112, 115 (2d Cir. 2011)). 

[35] Id. at 318. 

[36] Id. 

[37] Barr, supra note 17. 

[38] See ERCOT Update Press Conference on Texas Power Outages February 17, Rev (Feb. 17, 2021),

[39] See Tex. Util. Code § 39.151(a)(2). 

[40] See Tex. Civ. Prac. & Rem. Code §§ 101.001–.109 (2020). 

[41] Explanation of Indemnification Limitations and Insurance, Univ. of Tex. Sys.,,courts%20without%20its%20legislature’s%20consent (last visited Mar. 18, 2021); Tex. Civ. Prac. & Rem. Code § 101.021. 

[42] Univ. of Tex. Sys., supra note 41; Tex. Civ. Prac. & Rem. Code § 101.021. 

[43] See Amanda Watts & Eric Levenson, Texas Attorney General Sues Electric Company Griddy that Sent Huge Bills During Storm, CNN, (Mar. 1, 2021, 4:18 PM). 

Post Image from NOAA-22 satellite by NOAA.

11 Wake Forest L. Rev. Online 1 (Opens PDF in new tab)

Andrea A. Anderson*

I.  Introduction

Kenneth was a coal miner.[1]  One day, while cooling a welding area, a hose burst and severely injured his neck and face.[2]  Despite sustaining major injuries that would prevent him from working in the future, Kenneth had limited legal options to pursue compensation.[3]  For example, workers’ compensation law protected his employer, the coal company, from lawsuits by employees.[4]  Kenneth’s best option was to bring a products liability claim against the manufacturer and distributor of the welding hose.[5]  When Kenneth asked his employer for the hose so that he could investigate the cause of his injuries, his employer refused.[6]  The employer also refused to reveal the identity of either the manufacturer or distributor of the hose.[7]  After further investigation, Kenneth learned that his employer intentionally destroyed the hose after it had allowed the manufacturer and distributor to inspect it for their own legal defense.[8]  Perhaps even more troubling, Kenneth learned that the distributor was a subsidiary of the employer coal company.[9]  Frustrated with the unfair actions of the coal company and unable to pursue his products liability claim, Kenneth filed suit against his employer for intentional spoliation of evidence.[10]

Spoliation tort claims hold an individual liable in damages for the destruction of evidence critical to another’s legal claim.  The tort serves as an alternative to the traditional evidentiary approach to spoliation.[11]  In the traditional approach, parties claiming spoliation are limited to trial sanctions ranging from an inference that the destroyed evidence would have been adverse through the complete dismissal of a suit.[12]  In the tort suit, by contrast, a plaintiff is not limited to trial remedies and may seek full compensation for the underlying lawsuit.[13]

Courts and legal scholars categorize spoliation claims by the level of intent of the spoliator and the party’s relation to the underlying lawsuit.[14]  Spoliation claims may be brought against primary parties to the underlying suit or third parties to the litigation.[15]  Additionally, plaintiffs may allege that the spoliator negligently or intentionally destroyed evidence necessary for the litigation.[16]  This categorization results in four overall forms of spoliation claims: first-party negligent, first-party intentional, third-party negligent, and third-party intentional destruction of evidence.[17]

An independent spoliation cause of action is relatively novel.  In 1984, the California Court of Appeals was the first court to allow an independent spoliation claim.[18]  Afterwards, additional state courts began following suit and recognized independent forms of spoliation within their own jurisdictions.[19]  In the thirty-six years since the first case in California, thirty-three states have considered an independent spoliation claim.[20]  Nineteen states declined to recognize a spoliation tort, and fourteen states recognized at least one form of the claim.[21]

Of the forms of spoliation, third-party intentional claims enjoy the largest support amongst courts.  Most recently, the Idaho Supreme Court formally recognized third-party intentional spoliation in October of 2019.[22]  This Comment argues that third-party intentional claims are necessary and viable tort claims within the scheme of American civil litigation.

Third-party intentional spoliation claims are necessary to provide a remedy for the victim.  While sufficient trial sanctions exist to deter and remedy spoliation committed by first parties, such remedies are not available against third parties who interfere with a litigant’s ability to seek justice under the court system.[23]  Currently, states provide limited misdemeanor charges against third parties who are under a court order to preserve evidence and subsequently destroy or lose the material.[24]  Such consequences are only available in narrow circumstances, insufficiently deter spoliation, and fail to provide the victim with any remedy in its underlying lawsuit.  Thus, third-party spoliation claims are necessary to provide a remedy where current law is lacking.

Third-party intentional claims are viable because they advance the tort goals of deterrence and morality.  When an individual takes intentional steps to interfere with a viable claim, he measures the cost and benefits to the action.[25]  Knowing that spoliation is only found in the most fortuitous of circumstances and most cases settle before the discovery of such malfeasance,[26] the intentional spoliator takes a calculated risk that is purely aimed at self-interest at the expense of truth and justice.  Such immoral and intentional interference cannot be tolerated in our courts and should be addressed with a cause of action.

As Kenneth the coal miner’s case illustrates, third-party intentional spoliators are rarely true strangers to the underlying litigation.  Third parties who intentionally destroy evidence often have some pecuniary or personal interest in the lawsuit.[27]  Faced with minimal consequences, there is little deterrent for interested third parties to exercise their traditional property rights and dispose of their own property at will.  As courts and legal scholars wrestle with the issue of independent spoliation claims, they should choose to adopt and affirm the viability and necessity of third-party intentional spoliation claims.

Part II of this Comment will trace the evolution of independent tort claims from its beginning in California courts through its current acceptance across the fifty states and the District of Columbia.  Part III of this Comment will present arguments in favor of the necessity and viability of third-party intentional claims.  Part III.A will explain that third-party intentional claims conform with tort law principals. Part III.B will explain the fundamental errors in court opinions rejecting third-party intentional spoliation and will examine successful frameworks used in states that recognize independent spoliation.

II.  Background

A.  Historical Development of Spoliation of Evidence as a Tort

1.  Spoliation as an Evidentiary Issue

The concept of spoliation has its roots in English common law.  Its origin is often traced back to Amory v. Delamirie,[28] a 288-year-old case of a chimney sweep who found a jeweled ring while performing his work.[29]  In Amory, the sweep brought the jewel to a goldsmith who, under the pretense of evaluating the jewel, took it from the sweep and refused to return it.[30]  The sweep brought a common law claim of trover against the goldsmith, but the goldsmith refused to produce the jewel at trial.[31]  The court directed the jury that “unless the [goldsmith] did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages.”[32]  This jury instruction represents what the American legal system would later call an adverse inference in favor of the victim of spoliation.

Under American law, spoliation of evidence is largely treated as an evidentiary matter that the court addresses through sanctions.  The Federal Rules of Civil Procedure, for example, impose a variety of sanctions for first-party spoliation.[33]  Courts will fashion the intensity of the sanction to the level of intent of the spoliator.[34]  State courts follow a similar pattern when addressing first-party spoliation.  State courts largely treat spoliation as an evidentiary matter, and they enjoy great discretion in determining the just remedy for each case of spoliation.  For example, in Maryland, “[t]he destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party.”[35]  Under Florida law, a court may even sanction an offending party by establishing a rebuttable presumption of negligence and liability.[36]  Massachusetts and Minnesota take a slightly different approach.  Instead of tailoring the spoliation sanction to the level of culpability in the offending party, those states instruct judges to select a remedy that will address the level of prejudice suffered by the innocent party.[37]

Compared to the wealth of tools to address first-party spoliation, there are relatively limited remedies against third parties who destroy evidence.  Under several state laws, a third party who destroys evidence may be subject to criminal liability.  For example, under California law, it is a misdemeanor offense to destroy evidence that a court has ordered a stranger to the action to preserve for litigation.[38]  In Delaware, a state statute made it a class G felony to conceal, alter, or destroy evidence by any person, primary parties to the litigation or third parties.[39]

States have traditionally used evidentiary sanctions to deter and remedy spoliation.  Though courts have the greatest flexibility when addressing spoliation by a first party, court orders and criminal charges are also available against third parties who destroy evidence.

B.  Spoliation as an Independent Tort

The evidentiary approach, however, is not the only way that a court may deter and remedy the destruction of evidence that is essential to a civil suit’s just resolution.

1.  Spoliation Tort Birth and California’s Expansive Phase

California was the first state to recognize an independent claim for spoliation in Smith v. Superior Court.[40]  In Smith, the plaintiff was permanently blinded when a wheel and tire detached from another motorist’s van and collided with her windshield.[41]  After the accident, the van was towed to the dealer’s repair shop who agreed to preserve parts of the van for inspection.[42]  Unfortunately, the dealer shop later destroyed or lost the parts, and the plaintiff sued the dealer for “Tortious Interference with Prospective Civil Action By Spoliation of Evidence.”[43]

California’s Second District Court of Appeals noted that “California has long recognized [for] every wrong there is a remedy.”[44]  The court believed recognition of a novel, independent tort was necessary to deter future acts of intentional spoliation.[45]  Responding to arguments that assessing damages would be impermissibly speculative, the court quoted a United States Supreme Court holding that not all tort damages must be proven with certainty.[46]

Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.  In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.[47]

The defendant argued that the tort of intentional spoliation of evidence was precluded by a state statute imposing a misdemeanor criminal punishment for the act.[48]  The court rejected the defendant’s argument and noted that other state criminal statutes gave rise to a civil cause of action.[49]  The court further analogized intentional spoliation of evidence to the tort of intentional interference with prospective business advantage.[50]  The court ultimately concluded that the claim was necessary to protect the legal interests of a litigant in the value of his probable expectancy of the underlying suit and crafted a claim for intentional spoliation of evidence.[51]  Shortly after Smith, the California Second District Court of Appeals recognized an independent tort of negligent spoliation of evidence.[52]

In the next decade, four more states would formally recognize an independent spoliation tort.  Two years after Smith, the Supreme Court of Alaska formally recognized the tort of first-party spoliation.[53]  In 1993, the Ohio Supreme Court answered certified questions from a federal court regarding Ohio’s recognition of spoliation actions.[54]  Without providing detailed reasoning, the court officially recognized an independent tort for intentional spoliation against first- and third-party spoliators.[55]  Two years later, the Illinois and New Mexico supreme courts recognized negligent spoliation claims under their existing tort law structures.[56]  In the spring of 1998, the District of Columbia also recognized negligent spoliation claims against third parties.[57]  The District of Columbia would thus become the first jurisdiction to create a stand-alone negligent spoliation tort with elements distinct from traditional negligence law.

2.  California’s Restrictive Phase and the Continued Growth of Spoliation Claims

Just two months after the District of Columbia recognized spoliation, the Supreme Court of California changed direction and severely limited the availability of independent spoliation claims.[58]  In Cedars-Sinai Medical Center v. Superior Court,[59] the plaintiff alleged the defendant hospital intentionally destroyed medical records to prevent the plaintiff from prevailing in his medical malpractice claim.[60]  The court explained that deterrence of spoliation alone was insufficient to justify the recognition of a novel tort.[61]  Instead, the court would only recognize the claim if it “would ultimately create social benefits exceeding those created by existing remedies for such conduct, and outweighing any costs and burdens it would impose.”[62]  The court was most concerned with three issues: (1) the potential for endless litigation in recognizing a derivative tort action for misconduct associated with an underlying suit; (2) the strength of already existing remedies; and (3) the uncertainty in assessing damages.[63]  The court held that there was no cause of action for first-party spoliation of evidence where the party knew of the destruction before the conclusion of the initial lawsuit.[64]

One year after Cedars-Sinai, the Supreme Court of California rejected its recognition of third-party intentional spoliation in Temple Community Hospital v. Superior Court.[65]  The court explained that it would be an anomaly “for a nonparty to be liable in damages, including punitive damages for conduct that would not give rise to tort liability if committed by a [primary] party” to the litigation.[66]  The court again reiterated its concern over the speculative nature of damages in spoliation claims and noted that causation in such claims was similarly speculative.[67]  Re-emphasizing the court’s concern with duplicative litigation and inconsistent jury determinations, the court believed that third-party claims posed an even greater burden to the judicial system because it would substantially enlarge the class of plaintiffs.[68]

The California Supreme Court rejected the Second District’s reasoning that spoliation was analogous to  interference with prospective economic advantage.[69]  Under California common law, interference with prospective economic advantage is not viable under circumstances that present speculative claims such as sporting contracts and governmental licensing.[70]  Because spoliation claims are inherently speculative, they do not fall within the class of economic interests protected by California common law.[71]

Finally, the California Supreme Court reasoned the lack of remedies against third parties was an insufficient argument to recognize an independent spoliation claim.[72]  The court found existing criminal sanctions were sufficient to address third-party spoliation and rejected the claim.[73]  After acknowledging that fewer remedies were available for third-party spoliation, the court held that it was ultimately a matter for the legislature to draft additional protections into the law and the burden of private parties to ensure conservation of evidence through contractual agreements.[74]

After Cedars-Sinai and Temple, California courts were increasingly hostile towards independent spoliation claims.  The Second District Court of Appeals retreated from leading the state in recognizing spoliation claims and declared it would not recognize first- or third-party spoliation of evidence as independent torts.[75]  The Third and Fourth Districts followed suit and also declined to recognize independent claims for negligent spoliation of evidence.[76]

Despite California’s dramatic shift, states continued to formally recognize independent spoliation claims.  In the next twenty years, Alabama, Connecticut, Florida, Idaho, Louisiana, Montana, New Jersey, and West Virginia would all recognize independent spoliation actions.[77]

3.  States Continue to Recognize the Necessity and Viability of Independent Spoliation Claims

Most recently, in Raymond v. Idaho State Police,[78] Idaho recognized intentional spoliation in October 2019.[79]  In Raymond, the plaintiff’s father, Barry Johnson, was killed in a car accident.  The accident occurred when a police officer tried to pass Johnson while driving at a very high speed in the left lane while Johnson was making a lawful left turn into his driveway.[80]  The state police investigated the accident, and though the driving officer was charged with manslaughter, the charges were ultimately dismissed.[81]  The daughter brought suit against the state and county alleging two claims: wrongful death and intentional interference with prospective civil litigation.[82]

The pleadings in Raymond reflect the philosophical divide between courts that endorse the recognition of tort spoliation and those that do not.  The plaintiff argued that the state should adopt third-party spoliation claims in order “to protect plaintiffs from third-party misconduct because existing nontort remedies are insufficient and do not serve as adequate deterrents.”[83]  On the other hand, the defendant argued that the state should not adopt the tort because it would lead to endless and burdensome litigation, and existing remedies sufficiently deter the destruction of evidence.[84]

The Supreme Court of Idaho agreed with the plaintiff and formally adopted the tort of “intentional interference with a prospective civil action by spoliation of evidence by a third party.”[85]  The court supported its decision with two policy justifications: remedy and deterrence.[86]  Unlike first-party spoliation, the court believed traditional non-tort remedies to deter destruction of evidence by third parties provided an inadequate remedy for victims.[87]  Third parties are not subject to the same evidentiary inferences and discovery sanctions used to remedy destruction of evidence by first parties.[88]  Further, the court argued, attorney sanctions against third parties provided only minimal and insufficient deterrence.[89] Thus, by limiting the tort to third parties, the court believed it was creating an enhanced deterrent and providing a remedy to victims that would otherwise not have one.[90]  Finally, the court argued, that by limiting the claim to intentional interference, it was not only providing a remedy for the victim, but addressing acts that “are ultimately an affront to the judicial process as a whole.”[91]

Courts in Hawaii, Kansas, Missouri, Oklahoma, Utah, Vermont, and Virginia have considered independent spoliation claims, but rejected the individual case on its facts without affirming or rejecting a spoliation tort.[92]  Within those opinions, courts continued to express approval of third-party intentional spoliation claims.[93]  Eighteen states have yet to consider independent spoliation claims but may do so in the future as litigants continue to seek remedies for interference with their legal rights.

III.  Analysis

The value and recognition of independent spoliation claims remains hotly contested.  The majority of state courts that have considered the issue have followed Cedars-Sinai and declined to recognize the claim.  However, as is clear from the trend in case law, the California Supreme Court’s change in position did not stem the tide in recognition of spoliation torts.  Just last year, the Idaho Supreme Court joined the ranks of state courts that found the claim valid and necessary under its state legal system.

This Comment argues that state courts should continue to recognize spoliation claims, but under narrow circumstances.  Because existing court sanctions properly address both negligent and intentional first-party spoliation, no such independent claim is necessary to deter or remedy destruction of evidence by primary parties.  Additionally, holding third parties liable for negligent destruction of evidence would not be viable under the American legal system, where property owners generally enjoy the right to use and destroy personal property at will.[94]  Imposing an affirmative duty to preserve evidence on a third party would violate his property rights and impose a burden of predicting future litigation between parties other than himself.[95]  Thus, third-party negligence claims, though perhaps necessary in our system for lack of adequate remedies, are nonviable because the claims violate other established legal principles.

Third-party intentional claims, by contrast, are necessary and viable under the American legal system.  A third party who destroys evidence, with the intent of interfering with another’s lawsuit, commits a flagrant affront to the judicial system.  Our current legal system provides inadequate deterrence for such intentional spoliation in the form of weak criminal misdemeanor sanctions.  Further, the judicial system leaves the victim of such spoliation without any form of remedy, as traditional discovery sanctions are unavailable against a third party.  Thus, this Comment argues that third-party spoliation claims are necessary to provide a remedy to the victim and provides an analysis of state spoliation frameworks that are viable under American civil law.

A.  Recognition of Third-Party Intentional Spoliation Claims is Consistent with the Fundamental Goals of Law

In 2003, the West Virginia Supreme Court recognized all forms of spoliation except first-party negligent claims.[96]  The court reached its decision by analyzing each form of the claim under the goals of tort law: deterrence, compensation, and morality.[97]  Applying this analytical framework, it is clear that third-party intentional spoliation claims are consistent with the fundamental goals of tort law.

Deterrence and compensation weigh heavily in favor of recognizing third-party intentional spoliation claims.  Trial courts are generally given great discretion in selecting the appropriate sanction for first-party spoliation and will tailor the remedy according to the fault of the party destroying evidence.[98]  Third parties, by contrast, are not subject to the same trial sanctions and consequences.  Though some states impose misdemeanor charges for third parties who fail to comply with a court order to preserve evidence,[99] there is no penalty for destroying evidence before litigation begins or before the court issues an order.  As argued in Smith, “[i]f crucial evidence could be intentionally destroyed by a party to a civil action who thereby stands to gain substantially monetarily by such destruction, the effect of a misdemeanor would be of minimal deterrence.”[100]

Further, there is no form of compensation for the victim of third-party destruction of evidence because the court will not sanction an innocent first-party litigant for the behavior of a third party.  Thus, the goal of compensation and deterrence weighs in favor of recognizing third-party intentional claims.

Traditionally, the core of tort law was morality.[101]  When courts determined liability for actions, the morality of the tortfeasor’s act was the predominant factor in their analyses.[102]  Professor Charles Nesson discussed the intentional spoliator as an immoral man.[103]  After looking at the relevant case law, Professor Nesson discovered a disturbing pattern: spoliation is generally discovered only in the most fortuitous of circumstances.[104]  He hypothesized that as a result of its low rate of discovery, a victim of spoliation may not discover the destruction until well into the litigation or even after trial.[105]  However, most civil claims will settle before the resolution of the suit.[106]  Thus, as Professor Nesson argues, the intentional spoliator adopts a “potent strategy: suppress [i.e., spoliate] and settle.”[107]  The intentional spoliator acts immorally as he takes a calculated risk to interfere with another’s right to seek justice under the legal system in hopes of reaping some tangible benefit.

As concluded by legal scholars and the West Virginia Supreme Court, spoliation claims are necessary and viable under the American legal system because they enforce morality, deter wrongdoing, and compensate victims.

B.  The Temple Decision is Fundamentally Flawed

The Supreme Court of California did not fairly represent the nature of a third-party intentional spoliation tort in Temple.  Temple reasoned that spoliation claims are not viable because damages are impermissibly speculative.[108]  However, other states who have recognized spoliation have created workable standards for spoliation that fall within United States Supreme Court guidance.  Similarly, Temple reasoned that causation in spoliation claims is overly speculative.[109]  However, a study of other jurisdictional case law reveals multiple frameworks for causation that a court may adopt to avoid arguments of speculation.  Finally, Temple reasoned that allowing claims against third parties would create a substantial burden on the litigation system by enlarging the class of available plaintiffs.[110]  However, no such pattern has been seen in any state that allows third-party intentional claims, and justices within California disagreed with Temple’s assertion.  Contrary to Temple, third-party intentional spoliation claims are necessary and viable under American civil law.

1.  Temple Incorrectly Represented the Nature of Tort Spoliation Damages and Suggested Frameworks

In Temple, the court criticized Smith’s analogy of intentional spoliation to a claim for intentional interference with prospective economic advantage.[111]  Other state courts, however, have affirmed this interpretation of spoliation.  New Mexico courts, for example, also recognize intentional spoliation as within the class of economic torts.[112]  In its decision to recognize third-party intentional spoliation, the New Mexico Supreme Court explained the use of the judicial system and potential recovery in a lawsuit was an economic interest entitled to protection.[113]  In a later case, the New Mexico Supreme Court affirmed its view of spoliation torts and explained that its “primary goal in adopting a separate cause of action for intentional spoliation was not to vindicate the interests of the courts in preventing litigation-related fraud . . . [but was] to protect litigants’ and potential litigants’ prospective right of recovery in civil actions.”[114]

The argument against spoliation as an economic tort in Temple is merely a reiteration of the California Supreme Court’s critique of spoliation damages in Cedars-Sinai.[115]  Under California law, the Temple court reasoned, the economic tort was not viable because damages were impermissibly speculative.[116]  However, as explained by both the earlier Smith case and—more recently—the Idaho Supreme Court, spoliation damages are not so indeterminant as to cross the threshold into impermissible speculation.[117]

States that recognize spoliation claims created workable frameworks to assess damages.  One such framework, used in Alabama, Connecticut, and West Virginia, allows the plaintiff to recover the full value of the underlying lawsuit.[118]  This framework is the most concrete way of assessing spoliation damages.  In these states, so long as the plaintiff successfully shows all other elements of spoliation, there arises a rebuttable presumption that—but for the spoliation—the plaintiff would have recovered the full value of the underlying suit.[119]  The juries need not employ mathematical probabilities to assess the damages, and plaintiffs need not spend additional funds on damages experts.  Instead, the damage sum is set at the time of pleading.

Another form of damages in spoliation claims avoids the issue of speculation by providing an instruction to the jury to multiply the possible award in the underlying suit by the probability that the plaintiff would have won the claim if he had access to the evidence.[120]  This form of damages is factual, and thus inherently more speculative than the full recovery standard.  However, the determination of damages is still within the bounds of the United State Supreme Court precedent in Story Parchment Co. v. Paterson Parchment Paper Co.[121]  Story Parchment only prohibits damages based on mere speculation or guess.[122]  The Supreme Court instructs that it is enough that the damages are a matter of just and reasonable inferences.[123]  Requiring a jury to assess the probability that a litigant would have prevailed on a claim and multiplying that by a known sum is not a mere guess. It is the result of a reasonable inference and designed to bring justice to a party who has been deprived a legal right.

Thus, there are several ways to assess damages in a spoliation claim that are not speculative.  Instead of the Temple decision, courts considering the viability of spoliation claims should adopt one of the other models developed in other state supreme court decisions.

2.  Temple Incorrectly Represented the Nature of Causation in Tort Spoliation and Suggested Frameworks

In Temple, the California Supreme Court argued that independent spoliation claims require the jury to make a speculative guess as to causation.[124]  Namely, the claims require a jury to speculate as to the effect of the evidence on the underlying suit without a means to determine the actual content of the evidence.[125]  The nature of spoliation claims makes it impossible for the jury to assess what the evidence actually contained and whether its absence was the cause in fact of the failed lawsuit.[126]  However, states who have adopted spoliation as an independent tort have created successful ways to assess causation within the claims.[127]  In general, states have adopted one of two viable frameworks for causation: (1) a summary judgment standard and (2) a significant impairment standard. 

Under the summary judgment standard, a plaintiff needs to show that the evidence was so critical to the underlying action, that without it, the claim could not or did not survive a summary judgment  challenge.[128]  Because survival of summary judgment requires a showing that there exists no genuine dispute of material fact, a party claiming spoliation in these states must essentially show the destroyed evidence was critical to the underlying suit.  Without that evidence, the party would have no other evidence to meet its burden of production on an essential element of the underlying claim.[129]  However, under this standard, the plaintiff need not show the underlying claim would have ultimately been successful with the evidence.  Thus, the summary judgment standard avoids speculation on the actual effect the underlying evidence would have had on the success of the suit.  Instead, the standard requires only that the plaintiff show the destruction interfered with its burden of production.

Under the significant impairment standard, causation requires a showing of a significant possibility of success in the underlying suit and that the destruction of the evidence caused a significant impairment in pursuing the claim.[130]  In Holmes, the court rejected a standard that would require plaintiffs to show they would have prevailed on the underlying claim by a preponderance of the evidence.[131]  The court reasoned that such a standard was unreasonably high and failed to protect the unique circumstances of a spoliation victim.[132]  Such a standard would essentially require that the plaintiff prove the initial lawsuit in its entirety.[133]  However, in order to protect defendants from frivolous lawsuits and duplicate litigation, the court believed it important that the underlying suit was, at some threshold, meritorious.[134]  Thus, as compared to the summary judgment standard, this form of causation requires a defendant to address the possible success of the underlying suit.  As stated by the Montana Supreme Court, the significant impairment test requires the plaintiff to show that:

(1) the underlying claim was significantly impaired due to the spoliation of evidence; (2) a causal relationship exists between the projected failure of success in the underlying action and the unavailability of the destroyed evidence; and (3) the underlying cause of action would enjoy a significant possibility of success if the spoliated evidence still existed.[135]

“With respect to the third prong of causation, the standard of ‘significant possibility of success,’ is lower than the standard of ‘preponderance of the evidence.’”[136]  Though the significant impairment standard does require some form of speculation as to the underlying suit, it adds an additional layer of protection to defendants from frivolous lawsuits.

Both forms of causation provide a workable standard within their states.  The summary judgment standard provides a more concrete determination than the significant impairment standard.  By comparison, the significant possibility standard requires the plaintiff to show a possibly meritorious lawsuit but stops short of requiring the plaintiff to show it would have succeeded by a preponderance of the evidence.  Both standards provide a workable framework that allows the plaintiff to prove causation without resulting to speculation.  Further, both frameworks provide a remedy for the victim of a third-party intentional spoliation claim that would otherwise have no remedy at law for the impact of destroyed evidence on its underlying legal claims.

3.  Temple Incorrectly Represented the Burden of Third-Party Spoliation Claims on the Judicial System

Temple argued that third-party spoliation claims threaten the judicial system with a potential for endless derivative litigation and a substantially larger pool of defendants.[137]  However, the court presents this argument merely as a hypothetical.  The court does not support its hypothetical fear with any data from within its state or the five other states that recognized spoliation after Smith.

Notably, the justice who wrote the opinion in Cedars-Sinai (rejecting first-party spoliation claims) dissented in Temple and disagreed with the argument that third-party claims imposed a substantially larger burden than was justified.[138]  Instead, the dissent called the argument hyperbolic.[139]  Rather than endless litigation, the action “would create a single lawsuit between the spoliation victim and the spoliator.”[140]  Because the typical remedies available against first parties are unavailable against third parties, the dissent argued that any added burden on the judicial system is outweighed by the necessity to provide victims with a remedy and deter wrongdoing.[141]

In contrast to Temple, no other state who recognized third-party intentional claims later reported having a flood of litigation or a substantial burden on the judicial system.  California is the only state that has substantially changed its position on spoliation claims after recognition.  Despite California’s strong opinion in Temple, more states adopted at least one form of the tort in the twenty years after California’s reversal than states adopted the tort during its high water mark in California.[142]  When the Idaho Supreme Court officially recognized intentional claims against third parties, the court discussed and dismissed the reasoning in Temple, concluding “that the scale should tip in favor of the potential victims of spoliation . . . by providing a cause of action for which there is otherwise no remedy against a third party-spoliator.”[143]

IV.  Conclusion

To date, eighteen states have yet to decide on the recognition of an independent spoliation claim.  The highest courts in Hawaii, Kansas, Missouri, Oklahoma, Utah, Vermont, and Virginia have considered independent spoliation claims, but rejected the individual case on its facts without considering the merits.[144]  As state courts continue to consider independent spoliation claims, they should think of Kenneth’s claim against his coal company employer.  The coal mine deliberately interfered with Kenneth’s lawsuit when it allowed the other party to investigate a necessary piece of evidence and then destroyed the hose before the company was under a court order to preserve it.  The coal company knew it was immune to lawsuits by employees and could not be a first party in the products liability claim, but nevertheless the company had a pecuniary interest in the suit against its subsidiary.  Such immoral interference with the justice system cannot be tolerated, and courts should provide a remedy to victims like Kenneth.  As states continue to consider and decide on the issue, Temple should be viewed with skepticism.  Instead, courts should look to the viable frameworks within states who have adopted the independent tort and use those standards to craft and create their own cause of action for third-party intentional spoliation.

           *   Andrea is a 2021 J.D. candidate at the Wake Forest University School of Law.  Andrea thanks Professor Michael Green for his guidance and contribution to this Comment.

      [1].   Austin v. Consolidation Coal Co., 501 S.E.2d 161, 161 (Va. 1998).

      [2].   Id.

      [3].   See id.

      [4].   Id. at 161.

      [5].   Id.

      [6].   Id. at 161–62.

      [7].   Id.

      [8].   Id. at 162.

      [9].   Id.

     [10].   Id.

     [11].   See, e.g., Dowdle Butane Gas Co., Inc. v. Moore, 831 So. 2d 1124, 1127–28 (Miss. 2002); Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998).

     [12].   Dowdle, 831 So. 2d at 1127.

     [13].   See, e.g., Hannah v. Heeter, 584 S.E.2d 560, 571 (W. Va. 2003) (“[I]f a spoliator cannot rebut the presumption that the injured party would have prevailed in the underlying litigation but for the spoliation, the spoliator must compensate the party injured by the spoliation for the loss suffered as a result of his or her failure to prevail in the underlying litigation.”).

     [14].   Dowdle, 831 So. 2d at 1128; Bart S. Wilhoit, Comment, Spoliation of Evidence: The Viability of Four Emerging Torts, 46 UCLA L. Rev. 631, 659–61 (1998).

     [15].   Wilhoit, supra note 14, at 659–61.

     [16].   Id.

     [17].   Id.

     [18].   Hills v. United Parcel Service, Inc., 232 P.3d 1049, 1052 (Utah 2010) (citing Smith v. Superior Court, 198 Cal. Rptr. 829 (Cal. Ct. App. 1984)).

     [19].   See, e.g., Hazen v. Municipality of Anchorage, 718 P.2d 456, 463 (Alaska 1986) (recognizing a common law cause of action in tort for first-party intentional spoliation of evidence).

     [20].   See infra Section II.B.

     [21].   See infra Section II.B.

     [22].   Raymond v. Idaho State Police, 451 P.3d 17, 21 (Idaho 2019) (“[W]e now formally adopt the tort of intentional interference with a prospective civil action by spoliation of evidence by a third party.”).

     [23].   Smith v. Superior Court, 198 Cal. Rptr. 829, 834–35 (Cal. Ct. App. 1984).

     [24].   Id. at 833.

     [25].   Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action, 13 Cardozo L. Rev. 793, 795 (1991).

     [26].   Id. at 796.

     [27].   Wilhoit, supra note 14, at 667, 668 n.225.

     [28].   93 Eng. Rep. 664 (K.B. 1722).

     [29].   Id. at 664.

     [30].   Id.

     [31].   Id.

     [32].   Id.

     [33].   Fed. R. Civ. P. 37(b)(2)(A).

     [34].   See, e.g., Broccoli v. Echostar Commc’ns Corp., 229 F.R.D. 506, 510 (D. Md. 2005).

     [35].   Miller v. Montgomery County, 494 A.2d 761, 768 (Md. Ct. Spec. App. 1985).

     [36].   Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346–47 (Fla. 2005).

     [37].   Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 425 (Mass. 2002) (“[C]onsistent with the specific facts and circumstances of the underlying case, sanctions for spoliation are carefully tailored to remedy the precise unfairness occasioned by that spoliation.”); Foust v. McFarland, 698 N.W.2d 24, 30 (Minn. Ct. App. 2005) (explaining that under Minnesota law, the intent of the spoliator was irrelevant and the propriety of the sanction was instead dependent on the prejudice resulting to the opposing party).

     [38].   Smith v. Superior Ct., 198 Cal. Rptr. 829, 833 (Cal. Ct. App. 1984).

     [39].   Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247, 1250 (Del. Super. Ct. 1998).

     [40].   198 Cal. Rptr. 829 (Cal. Ct. App. 1984).

     [41].   Id. at 831.

     [42].   Id.

     [43].   Id.

     [44].   Id. at 832.

     [45].   Id. at 835 (“If crucial evidence could be intentionally destroyed by a party to a civil action who thereby stands to gain substantially monetarily by such destruction, the effect of a misdemeanor would be of minimal deterrence.”).

     [46].   Id.

     [47].   Id. (quoting Story Parchment Co. v. Paterson P. Paper Co., 282 U.S. 555, 563 (1931)).

     [48].   Id. at 833.

     [49].   Id. at 834–35.

     [50].   Id. at 836.

     [51].   Id. at 837.

     [52].   Velasco v. Com. Bldg. Maint. Co., 215 Cal. Rptr. 504, 506 (Cal. Ct. App. 1985).

     [53].   Hazen v. Municipality of Anchorage, 718 P.2d 456, 463–64 (Alaska 1986).

     [54].   Smith v. Howard Johnson Co., Inc., 615 N.E.2d 1037, 1038 (Ohio 1993).

     [55].   Id.

     [56].   Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 269–70 (Ill. 1995) (holding that under Illinois law, an independent claim for spoliation may be stated under existing tort law); Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189–91 (N.M. 1995) (recognizing both an intentional spoliation of evidence claim and a claim of negligent spoliation under traditional negligence theory in New Mexico).

     [57].   Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 847 (Ct. App. D.C. 1998) (“[N]egligent or reckless spoliation of evidence is an independent and actionable tort in the District of Columbia.”).

     [58].   Cedars-Sinai Med. Ctr. v. Superior Ct., 954 P.2d 511, 521 (Cal. 1998).

     [59].   954 P.2d 511 (Cal. 1998).

     [60].   Id. at 512.

     [61].   Id. at 515.

     [62].   Id.

     [63].   Id.

     [64].   Id. at 521.

     [65].   Temple Cmty. Hosp. v. Superior Ct., 976 P.2d 223, 225 (Cal. 1999).

     [66].   Id. at 225.

     [67].   Id. at 228 (citing Cedars-Sinai Med. Ctr., 954 P.2d at 518).

     [68].   Id. at 231–32.

     [69].   Id. at 231.

     [70].   Id.

     [71].   Id.

     [72].   Id.

     [73].   Id. at 232–33.

     [74].   Id. at 232.

     [75].   See, e.g.,Coprich v. Superior Ct., 95 Cal. Rptr. 2d 884, 891 (Cal. Ct. App. 2000).

     [76].   Lueter v. State of California, 115 Cal. Rptr. 2d 68, 79 (Cal. Ct. App. 2002) (holding that California courts do not recognize a tort cause of action for negligent spoliation of evidence); Farmers Ins. Exchange v. Superior Court, 95 Cal. Rptr. 2d 51, 56 (Cal. Ct. App. 2000) (“[W]e “decline to recognize a tort for negligent third party spoliation of evidence.”).

     [77].   Smith v. Atkinson, 771 So. 2d 429, 432 (Ala. 2000); Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165, 1178 (Conn. 2006); Humana Worker’s Comp. Servs. v. Home Emergency Servs., Inc., 842 So. 2d 778, 781 (Fla. 2003); Raymond v. Idaho State Police, 451 P.3d 17, 21 (Idaho 2019); Fiveash v. Pat O’brien’s Bar, Inc., 201 So. 3d 912, 918 (La. Ct. App. 2016); Oliver v. Stimson Lumber Co., 993 P.2d 11, 18 (Mont. 1999); Rosenblit v. Zimmerman, 766 A.2d 749, 757 (N.J. 2001); Hannah v. Heeter, 584 S.E.2d 560, 568 (W. Va. 2003).

     [78].   451 P.3d 17 (Idaho 2019).

     [79].   Id. at 21 (“[W]e now formally adopt the tort of intentional interference with a prospective civil action by spoliation of evidence by a third party.”).

     [80].   Id. at 19.

     [81].   Id.

     [82].   Id.

     [83].   Id. at 20.

     [84].   Id.

     [85].   Id. at 21.

     [86].   Id.

     [87].   Id. at 21–22.

     [88].   Id. at 22.

     [89].   Id.

     [90].   Id.

     [91].   Id. at 23

     [92].   Matsuura v. E.I. du Pont de Nemours and Co., 73 P.3d 687, 705–06 (Haw. 2003) (denying the spoliation claim after concluding that the plaintiff had plenty of other ways to prove the effects of Benlate and that a spoliation claim requires plaintiffs to show the destruction of the evidence caused the plaintiff to lose the underlying suit);Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1183 (Kan. 1987) (“We conclude that absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of the intentional interference with a prospective civil action by spoliation of evidence should not be recognized in Kansas.”); Fisher v. Bauer Corp., 239 S.W.3d 693, 701 (Mo. Ct. App. 2007) (citing Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. 1993)) (denying leave to amend to allege intentional spoliation because there was no evidence that defendant had destroyed the records in question); Patel v. OMH Med. Ctr., Inc., 987 P.2d 1185, 1202 (Okla. 1999) (“Because the conduct complained of in this action does not present a case of spoliation of evidence, we need not consider today whether that tort should be recognized as a viable cause of action in this state.”); Hills v. United Parcel Serv., Inc., 232 P.3d 1049, 1058 (Utah 2010) (affirming dismissal of independent spoliation claim because evidence was not relevant to the underlying jury verdict); Menard v. Cooperative Fire Ins. Ass’n of Vt., 592 A.2d 899, 900 (Vt. 1991) (affirming the dismissal of the plaintiff’s action because the loss of evidence caused no harm given that it did not prevent the plaintiff from proving that the defendant was negligent in the underlying lawsuit); Austin v. Consolidation Coal Co., 501 S.E.2d 161, 162 (Va. 1998) (holding that an employer does not owe a duty to employees to preserve evidence for litigation against third parties).

     [93].   Utah, for example, stated it would likely affirm a third-party intentional spoliation claim.  Hills, 232 P.3d at 1056.  In that case, the Utah Supreme Court declined to recognize the independent tort on the facts.  Id. at 1052.  Despite the refusal to render a judgment, the court continued to detail the evolution of independent spoliation claims and expressed a favorable attitude towards intentional third-party claims.  The court noted that the state split on the recognition of the independent tort reflected a divide between higher values of judicial efficiency and finality of judgment on one side and the value on the need to remedy and deter spoliation on the other.  Id. at 1056.  The court agreed with other jurisdictions that there exist insufficient non-tort remedies to deter third parties from intentionally spoliating evidence.  Id. at 1057 (“Indeed, as this case shows, evidence tends to disappear when the risk of seldom-enforced non-tort remedies are weighed against the risk of payment on a wrongful-death claim.  This is especially problematic considering that the intentional spoliation of evidence threatens to undermine the integrity of our entire legal system.”).

     [94].   See generally Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 781 (2005) (discussing the historical roots and American limitations on the right to destroy personal property).

     [95].   Oliver v. Stimson Lumber Co., 993 P.2d 11, 18 (Mont. 1999); Coleman v. Eddy Potash, Inc., 905 P.2d 185, 191 (N.M. 1995) (“We hold that in the absence of [certain enumerated circumstances] a property owner has no duty to preserve or safeguard his or her property for the benefit of other individuals in a potential lawsuit.”); Hannah v. Heeter, 584 S.E.2d 560, 568 (W. Va. 2003).

     [96].   Hannah, 584 S.E.2d at 573–74.

     [97].   Id. at 566 (citing Wilhoit, supra note 14, at 662).

     [98].   See, e.g., Miller v. Montgomery County, 494 A.2d 761, 768 (Md. Ct. Spec. App. 1985) (holding that the range of adverse jury instructions and inferences, tailored to the level of intent in spoliation, were sufficient remedies for parties who intentionally or negligently spoliate evidence); Harris v. State Dep’t of Corr., 294 P.3d 382, 389 (Mont. 2013) (explaining that the recognition of first-party intentional spoliation is unnecessary because courts are already able to remedy deliberate spoliation with harsher discovery sanctions or the entry of default judgement).  But see Foust v. McFarland, 698 N.W.2d 24, 30 (Minn. Ct. App. 2005) (holding that when deciding against the recognition of first-party spoliation claims, the intent of the spoliator is irrelevant and the propriety of the sanction is dependent on the prejudice to the opposing party).

     [99].   See, e.g., Smith v. Superior Ct., 198 Cal. Rptr. 829, 833 (Cal. Ct. App. 1984).

   [100].   Id. at 835.

   [101].   Wilhoit, supra note 14, at 662.

   [102].   Id.

   [103].   Nesson, supra note 25, at 795.

   [104].   Id. at 796.

   [105].   Id.

   [106].   Id.

   [107].   Id.

   [108].   Temple Cmty. Hosp. v. Superior Ct., 976 P.2d 223, 232 (Cal. 1999).

   [109].   Id.

   [110].   Id.

   [111].   Id. at 231.

   [112].   Coleman v. Eddy Potash, Inc., 905 P.2d 185, 190 (N.M. 1995).

   [113].   Id.

   [114].   Torres v. El Paso Elec. Co., 987 P.2d 386, 403 (N.M. 1999).

   [115].   Cedars-Sinai Med. Ctr. v. Superior Ct., 954 P.2d 511, 516 (Cal. 1998).

   [116].   Temple, 976 P.2d at 232.

   [117].   Smith v. Superior Ct., 198 Cal. Rptr. 829, 835 (Cal. Ct. App. 1984); Raymond v. Idaho State Police, 451 P.3d 17, 22 (Idaho 2019).

   [118].   Smith v. Atkinson, 771 So. 2d 429, 438 (Ala. 2000) (full recovery in a third-party negligence claim); Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165, 1181 (Conn. 2006) (full recovery in a first-party intentional claim); Hannah v. Heeter, 584 S.E.2d 560, 571 (W. Va. 2003) (full recovery for all forms of spoliation claims).

   [119].   Smith, 771 So. 2d. at 435; Rizzuto, 905 A.2d at 1180; Hannah, 584 S.E.2d at 571.

   [120].   Oliver v. Stimson Lumber Co., 993 P.2d 11, 21 (Mont. 1999); see also Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 853 (D.C. 1998) (explaining that damages should be equal to a “just and reasonable estimation based on relevant data” of the damages the plaintiff would have gained in the underlying suit “multiplied by the probability that the plaintiff would have won the underlying suit had the spoliated evidence been available”); Miller v. Allstate Ins. Co., 573 So. 2d 24, 29 (Fla. Ct. App. 1990) (holding that damages in a spoliation claim are equal to the anticipated amount of the underlying claim “reduce[ed] . . . to the extent that any uncertainty reduced the value of the award or earnings”).

   [121].   282 U.S. 555 (1931).

   [122].   Id. at 563 (“Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.”).

   [123].   Id.

   [124].   Temple Cmty.. Hosp. v. Superior Ct., 976 P.2d 223, 230 (Cal. 1999).

   [125].   Id. at 230–31.

   [126].   Id. at 230.

   [127].   See infra Section III.B.2.

   [128].   See, e.g., Smith v. Atkinson, 771 So. 2d 429, 432 (Ala. 2000) (concluding that under Alabama law, a plaintiff must show “that the lost or destroyed evidence was so important to the plaintiff’s claim in the underlying action that without that evidence, the claim [would] not survive . . . a motion for summary judgment . . .”); Hannah v. Heeter, 584 S.E.2d 560, 570 (W. Va. 2003) (“[A] plaintiff in a spoliation claim does not have to file an action in which the spoliated evidence would have been vital to proving or defending his or her case. Instead, he or she simply may show that without the spoliated evidence, a summary judgment would have been entered on behalf of the adverse party in the underlying action.”).

   [129].   As an example, the Hawaii supreme court declined to certify a question about a spoliation claim where a plaintiff alleged defendant destroyed evidence from a scientific study relevant to the toxicity of a chemical.  Matsuura v. E.I. du Pont de Nemours & Co., 73 P.3d 687, 706 (Haw. 2003).  The court reasoned that, because similar scientific tests conducted by independent sources also provided data for the chemical’s harmful effects, and that plaintiffs in other jurisdictions were able to prove substantially similar claims against the defendant without the use of the data, the plaintiff could not prove the destroyed evidence caused her to lose the suit.  Id.

   [130].   Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 850 (D.C. 1998).

   [131].   Id.

   [132].   Id.

   [133].   Id. at 851.

   [134].   Id.

   [135].   Oliver v. Stimson Lumber Co., 993 P.2d 11, 21 (Mont. 1999) (citing Holmes, 710 A.2d. at 851-52).

   [136].   Id. Illinois courts have adopted a similar standard that essentially functions in the same manner as the significant impairment standard.  See, e.g.,Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 271 n.2 (Ill. 1995) (“A plaintiff need not show that, but for the loss or destruction of the evidence, the plaintiff would have prevailed in the underlying action.  This is too difficult a burden, as it may be impossible to know what the missing evidence would have shown.  A plaintiff must demonstrate, however, that but for the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying suit.”); Hartmann Realtors v. Biffar, 13 N.E.3d 350, 357 (Ill. Ct. App. 2014) (“The plaintiff must demonstrate that, but for the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in an underlying lawsuit; the plaintiff need not show that he would have prevailed.”).  Note that this standard, like the significant impairment standard, requires proving both that the destruction of evidence rendered the lawsuit nonviable and that the underlying lawsuit was in some way meritorious.  However, the reasonable probability of success standard is arguably more lenient than the significant probability of success standard.

   [137].   Temple Cmty. Hosp. v. Superior Ct., 976 P.2d 223, 232 (Cal. 1999).

   [138].   Id. at 239 (Kennard, J., dissenting).

   [139].   Id.

   [140].   Id. (emphasis added)

   [141].   Id. at 236.

   [142].   Alaska, the District of Columbia, Illinois, New Mexico, and Ohio recognized the tort between 1984 and 1998.  Alabama, Connecticut, Florida, Idaho, Louisiana, Montana, New Jersey, and West Virginia recognized the tort after 1998.

   [143].   Raymond v. Idaho State Police, 451 P.3d 17, 23 (Idaho 2019).

   [144].   Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1183 (Kan. 1987) (concluding “that absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of ‘the intentional interference with a prospective civil action by spoliation of evidence’ should not be recognized in Kansas”); Matsuura v. E.I. du Pont de Nemours & Co., 73 P.3d 687, 706 (Haw. 2003) (noting that a spoliation claim requires plaintiffs to show that the destruction of the evidence caused the plaintiff to lose the underlying suit and concluding that plaintiff had plenty of other ways to prove the effects of Benlate and the claim failed); Fisher v. Bauer Corp., 239 S.W.3d 693, 704 (Mo. Ct. App. 2007) (affirming dismissal of intentional spoliation allegation because there was no evidence that defendant had destroyed the records in question); Patel v. OMH Med. Ctr., Inc., 987 P.2d 1185, 1202 (Okla. 1999) (“Because the conduct complained of in this action does not present a case of spoliation of evidence, [the court] need not consider today whether that tort should be recognized as a viable cause of action in this state.”); Hills v. United Parcel Serv., Inc., 232 P.3d 1049, 1058 (Utah 2010) (affirming dismissal of independent spoliation claim because evidence was not relevant to the underlying jury verdict); Menard v. Cooperative Fire Ins. Ass’n of Vt., 592 A.2d 899, 900 (Vt. 1991) (same); Austin v. Consolidation Coal Co., 501 S.E.2d 161, 163 (Va. 1998) (holding that an employer does not owe a duty to employees to preserve evidence for litigation against third parties).

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10 Wake Forest L. Rev. Online 107

James W. Sprague

I. Introduction

In the summer of 2002, a Union Pacific Railroad conductor, Arnulfo Flores, agreed to transport ten Mexican nationals across the Mexican-American border undetected.[1]  When the nationals arrived on the railroad’s property, Flores ushered them into a large metal railway car and sealed them inside.[2]  Flores planned to release the nationals on American soil after crossing the Sarita Border Patrol checkpoint.[3]  For reasons unknown, however, the car remained sealed after crossing the checkpoint until reaching its final destination in Denison, Iowa, four months later.[4]  Unsurprisingly, none of the nationals survived.[5]  The medical examiner determined that all ten nationals perished by a  combination of extreme overheating, lack of oxygen, and dehydration.[6]

Surviving family members brought suit against Flores and Union Pacific as well as other parties involved in the deaths of their loved ones.[7]  Because the nationals sought to enter America illegally in violation of the Bringing and Harboring Certain Aliens Act, an act that has since been ruled unconstitutional,[8] the plaintiffs could not sustain the suit.[9]  Although rarely seen in tort cases,[10] the court used the doctrine of in pari delicto to bar the plaintiffs from recovery despite Flores’ significant contribution to the Mexican nationals’ deaths.[11]

Robert McClelland was Johnny and Elizabeth Inge’s pharmacist.[12]  Either negligently or willfully, McClelland sold the Inges, both opioid addicts, thousands of powerful narcotics, far in excess of their prescriptions.[13]  Further, McClelland did this knowing, by his own admission, that “there was absolutely no medical necessity or benefit to prescribing these medications.”[14]  After suffering significant harm due to their opioid abuse, the Inges filed suit against McClelland and his pharmacy under the Racketeer Influenced and Corrupt Organizations Act,[15] alleging negligence, unfair practices, and breach of fiduciary duties.[16]  Again, despite McClelland causing, in part, the Inges’ harms, the court absolved him and his pharmacy from all liability through in pari delicto since the Inges possessed narcotics exceeding their prescription limits, which violated state law.[17]

Finally, Elizabeth Stopera, a single woman, worked as a secretary in the Ford Motor Company’s finance department.[18]  Stopera engaged in sexual liaisons with her married coworker Dominic DiMarco, a Ford executive.[19]  For about one year, Stopera and DiMarco met repeatedly at Stopera’s house to engage in sexual intercourse, and Stopera contracted human papilloma virus, manifesting as genital warts.[20]  DiMarco had known about his infection and his duty to inform sexual partners but nevertheless refused to inform Stopera.[21]

In her suit against DiMarco for fraudulent concealment and battery, the district court dismissed Stopera’s claims because her sexual relationship with DiMarco had been adulterous and, therefore, in violation of Michigan law.[22]  Stopera argued on appeal that the court should not bar her suit because the statute outlawing adultery was “never enforced [and] regularly ignored.”[23]  The Michigan Court of Appeals disagreed with Stopera’s argument, explaining that a law’s enforcement did not alter the legality of its proscribed conduct, noting that only the legislature’s repeal of the statute could affect such a change.[24]  Nevertheless, the court of appeals reversed the district court’s dismissal by using in pari delicto because DiMarco was “egregiously” more morally culpable than Stopera.[25]  Although Stopera succeeded in overcoming dismissal, there are nearly identical cases in which courts barred plaintiff recovery.[26]

In all three cases, the plaintiffs engaged in some degree of illegal or wrongful conduct.  And, because of this conduct and in pari delicto, two culpable defendants evaded liability despite factually and proximately causing the plaintiffs’ harms.  As for the defendant that did not per se evade liability,[27] the court made its decision on whether or not to bar the claim against him by subjectively weighing the moral culpability of the parties, Stopera and DiMarco.  Both of these approaches to apportioning liability are distinctly at odds with modern American tort law, which almost universally seeks to allocate damages between parties according to their relative fault,[28] not based on the legality of plaintiff conduct[29] or the relative moral culpability of the parties.[30]  In other words, the use of in pari delicto seems to selectively resurrect contributory negligence on the basis of moral standing, completely barring plaintiff recovery for harms caused by the defendant.[31]  This Article, then, will explore how in pari delicto operates in tort law and the many ways in which it defeats quintessential tort objectives.

Part II of this Article briefly examines the history of in pari delicto and similar defenses, exploring how this legal doctrine blended with equitable doctrines, taking on some of their characteristics, and how it migrated to tort law.  In addition, Part II will discuss the modern doctrine’s variant definitions in tort.  Part III will explore in pari delicto’s inconsistencies with tort precepts.  This part will explore, in particular, the doctrine’s endorsement for weighing parties’ moral characters, its proclivity for inconsistent and arbitrary results, and, most importantly, its incompatibility with comparative fault.  Part IV will recommend how courts should approach in pari delicto in tort cases moving forward.

To be clear, this Article only considers the use of in pari delicto and its variant definitions in the context of tort law and does not seek to critique their use in, say, antitrust or contracts, legal fields which have robust albeit slightly different approaches to in pari delicto.

II. In Pari Delicto’s Development in Tort Law

In pari delicto potior est conditio defendentis means “in a case of equal or mutual guilt . . . the position of the [defending] party . . . is the better one.” [32]  This doctrine developed at common law to preserve the decorum of the courts, ensuring that the law would not be a tool for enforcing illegal agreements.[33]  The quintessential illustration of in pari delicto involves a highwayman who sues his criminal partner for a withheld share of their ill-gotten gains.[34]  Rather than allow such an unsavory suit to sully the court, English common law developed in pari delicto as an affirmative defense, enabling defendants to escape liability when sued to enforce an illegal agreement.[35]  The rationale: “[C]ourts should not lend their good offices to mediating disputes among wrongdoers.”[36]  Thus, this earliest iteration of in pari delicto clearly required joint illegal enterprise between the plaintiff and defendant.[37]  Furthermore, a plaintiff could overcome in pari delicto by showing that the defendant was more morally culpable, which required courts to balance the parties’ relative guilt.[38]

In pari delicto developed to soften common law’s maxim ex turpi causa non oritur actio, “no action arises out of an immoral act.”[39]  Ex turpi causa completely barred all plaintiffs from relief if their cause of action arose from illegal or wrongful conduct.[40]  In pari delicto’s weighing of culpability, then, provided an exceptive mechanism that sounded in equity rather than law[41] despite (and contrary to common belief) its development as a legal doctrine.[42]

Although in pari delicto began largely in contracts, it migrated to other disciplines, including torts.[43]  While the timeline regarding this migration is unclear due to lacking scholarship, tort cases employing in pari delicto began surfacing with some degree of regularity in the first half of the twentieth century.[44]

While the definition of in pari delicto has remained relatively consistent in contract law,[45] its definitions and applications in tort are inconsistent and confused.[46]  Some jurisdictions treat in pari delicto as the traditional iteration of the rule, explained above, but a minority of jurisdictions employ in pari delicto as the wrongful conduct rule in tort cases.[47]  The wrongful conduct rule evolved from ex turpi causa, discussed above, and historically barred any plaintiff from recovery if the plaintiff was engaged in illegal conduct when suffering a tort.[48]  Recall the first case discussed in the Introduction, which involved the deaths of ten Mexican nationals.[49]  Under the traditional application of in pari delicto, the surviving family members might have been able to sustain their suits against Union Pacific since Flores’ conduct—resulting in the gruesome deaths of ten people—was arguably more morally culpable than the Mexican nationals’ attempts to illegally enter the country.  Texas, however, employs in pari delicto as the wrongful conduct rule.[50]  As such, the relative weight of the parties’ moral culpability did not allow an exception to the plaintiff’s recovery bar.

III.  In Pari Delicto Conflicts with Fundamental Tort Principles

Regardless of a jurisdiction’s definition for in pari delicto, the doctrine defeats a number of tort law’s fundamental principles.  First, most courts that use in pari delicto weigh the relative culpability or moral standing of the parties when determining the plaintiff’s ability to bring suit.[51]  Second, the vague tests for determining moral culpability, coupled with other aspects of court analysis, leave room for inconsistent and arbitrary results that might obscure the real reasons behind court decisions.  These tests also leave room for judicial bias to influence court decisions.  Third, court justifications for in pari delicto reveal a fundamental misunderstanding about compensation in tort law.  Fourth, in pari delicto is redundant because tort law already has robust doctrines addressing plaintiff misconduct.  Finally, in pari delicto is inconsistent with comparative fault and operates to selectively resurrect contributory negligence[52] in jurisdictions that have abandoned that doctrine.

A. Liability Apportionment in Tort Does Not Rest on the Morality of Party Conduct

In pari delicto can protect claims from dismissal under the wrongful conduct rule, but first requires courts to weigh each party’s moral standing and determine that the plaintiff was less morally culpable than the defendant.  This, however, is inconsistent with tort law, because “[t]he moral characteristics of the parties before a court have little or no relevance to that court’s capacity to do justice or injustice.”[53]  In addition, tort law does not usually “inquire into the moral fiber of the plaintiff.”[54]  Instead, tort law first concerns itself with the causal relationship between the parties’ actions and resulting harm when apportioning liability.[55]  Thus, when considering the wrongful conduct of a plaintiff, tort law asks whether or not a party’s conduct causally contributed to the plaintiff’s harm rather than whether the plaintiff’s conduct was morally suspect.  In this manner, tort seeks to approach the issue of liability by reference to an objective standard first: causation.[56]

In pari delicto, however, complicates matters as it often calls for weighing the moral culpability of the parties at the dismissal and summary judgment thresholds.[57]  Notably, this means the court itself determines whether the plaintiff’s illegal conduct bars his or her claim, long before the factfinder has such an opportunity.[58]  Because moral standing is difficult to objectively assess, courts struggle to explain their reasoning.[59] This failure violates additional tort precepts.

B. Courts Applying In Pari Delicto Determine Relative Moral Culpability Without Reference to Discernable Standards, Creating a Mire of Inconsistency and the Risk that Judicial Bias Will Affect Court Decisions

As a result of courts’ inability to delineate standards for weighing culpability, opinions regarding in pari delicto are a mire of inconsistency.  Consider the following case: In Orzel v. Scott Drug Co.,[60] Sylvia Orzel filed suit against a drug company on behalf of her husband, John Orzel, for negligently supplying him with Desoxyn, a trade name for the chemical methamphetamine (which was an obesity treatment at the time).[61]  While John Orzel originally followed the prescription instructions, he became addicted to Desoxyn around 1981.[62]  After becoming addicted, Orzel began to consume more and more pills each day.[63]  By June 1981, Orzel consumed eight pills a day, heard voices, experienced hallucinations, and suffered paranoid delusions.[64]  Eventually, Orzel could no longer work and experienced “amphetamine psychosis,” which rendered him legally insane.[65]

In his suit, Orzel argued that Scott Drug Co. breached common law and statutory duties by selling him excess Desoxyn without verifying his identity or allowing adequate intervals between prescription refills.[66]  Scott Drug Co. argued that Orzel’s Desoxyn consumption patterns and misrepresentations to health professionals, for the purposes of receiving Desoxyn prescriptions, violated the law.[67]  In this manner, Scott Drug Co. sought to bar Orzel’s claim at summary judgment.[68]  The trial court allowed Orzel’s suit to proceed and instructed the jury to apportion damages according to Michigan’s modified comparative fault framework.[69]  The jury determined that both parties, Orzel and Scott Drug Co., were 50 percent responsible for Orzel’s harm and, as such, reduced Orzel’s remedy by half, awarding him $1.8 million.[70]

However, at the close of trial, the district court granted Scott Drug Co.’s motion for judgment notwithstanding the verdict and barred the plaintiff’s recovery under the wrongful conduct rule.[71]  The court of appeals reversed in an unsigned opinion, and the Supreme Court of Michigan affirmed the trial court’s judgment notwithstanding the verdict by applying in pari delicto, completely barring Orzel from relief despite Scott Drug Co. causing his injuries.[72]  The court, after considering the causal relationship between Orzel’s illegal conduct and his harm,[73] weighed Orzel’s relative moral culpability when affirming the reversal:

In comparing John Orzel’s wrongful conduct with the defendant’s wrongful conduct, we conclude that the two wrongdoers are equally at fault. Both parties played pivotal roles in making the illegal acts possible, and we cannot say that one party is more guilty than the other.[74]

This passage constitutes the bulk of the court’s reasoning in weighing the parties’ relative culpability.  In addition, the above passage operates more like a conclusion rather than an analysis.  Given, however, that in pari delicto is untethered to any discernable standards, it is unsurprising that the court had to assert its conclusion regarding the parties’ moral standing without thorough discussion.  Allowing courts to assert conclusions without measurable standards, as here, creates the risk that judicial bias will influence court decision.

Such a risk of judicial bias is particularly apt in cases involving in pari delicto since the plaintiffs, by definition, have somehow engaged in wrongful conduct.  Thus, a court may rule against an unattractive or morally-repugnant litigant because of that unattractiveness.  While bias is usually thought to be a problem with juries,[75] its subtle effects arise in other contexts.[76]  As such, courts should prefer a clear, rule-based approach when allocating liability to the vague balancing test discussed above.

C. The Policy Rationales Supporting In Pari Delicto Reveal a Fundamental Misunderstanding About Compensation in Tort Law

The policy rationales courts embrace when justifying in pari delicto or the wrongful acts doctrine explain that such doctrines prevent wrongdoers from “profiting as a result of their illegal acts.”[77]  While this reasoning may be superficially persuasive, it implies that the plaintiffs in torts are “profiting.”  This language may make sense in contracting or antitrust cases, but it certainly betrays a misunderstanding about the tenets of tort laws.  As one commenter explains:

In tort cases . . . plaintiffs are not seeking profit, but compensation for losses they have suffered.  At most, they will be compensated for those losses and so, in theory, “break even.”  In practice, the costs of prosecuting these suits ensure that plaintiffs will not be fully compensated for their injuries, leaving even the successful plaintiff to shoulder some part of the loss.  Because plaintiffs cannot profit from their crimes if they are allowed to recover in tort, this justification for prohibiting recovery is inapplicable in tort cases.[78]

As such, even though plaintiffs may have engaged in illegal or wrongful conduct at the time of their injury, they make no “profit” by being compensated for a defendant’s negligence.

D. In Pari Delicto is Redundant Because Tort Law Already Has Robust Affirmative Defenses Based on Plaintiff Misconduct

In addition to the above critiques, in pari delicto’s use is superfluous.  Tort has always had robust affirmative defenses based on plaintiff misconduct: contributory negligence and, eventually, comparative fault.[79]  As such, there is little need for a doctrine intended to fill the plaintiff-misconduct gap, particularly if that doctrine does so in a manner inconsistent with comparative fault.  Courts should instead rely on reliable and objective causal tests like comparative fault when assessing the role of a plaintiff’s misconduct.[80]  If the plaintiff’s actions causally contributed to his or her harm, courts should allow the factfinder to apportion liability among the parties.  This approach best serves the twin aims of tort law, which seek to provide relief to those injured by the tortious conduct of another, and to discourage negligent, reckless, and otherwise tortious behavior.[81]

E. In Pari Delicto is Inconsistent with Comparative Fault, Which Apportions First on Principles of Causation Rather than on Subjective Standards Like Moral Culpability

Finally, in pari delicto is inconsistent with comparative fault.  At its essence, comparative fault seeks to grant relief first in accordance with parties’ relative responsibility in causing the injury.[82]  Note that the inquiry here is causal, not moral culpability.  Only if a plaintiff and defendant both causally contribute to the plaintiff’s harm, can the factfinder (typically the jury) apportion liability on standards other than causation.[83]  In this manner, courts in comparative fault jurisdictions can only bar a plaintiff’s recovery when the plaintiff caused greater than 50 percent of his or her harm in a modified comparative fault jurisdiction.[84]

Comparative fault and modified comparative fault stand in opposition to the all-or-nothing contributory negligence rule that once barred numerous plaintiffs from recovery.  However, because in pari delicto bars plaintiff recovery if the plaintiff fails a moral standing analysis, it enables the selective resurrection of this harsh all-or-nothing bar,[85] in clear violation of modern tort precepts.[86]  As a result, some otherwise deserving plaintiffs will bear the entire cost of an injury caused by defendants’ negligence.  Worse, as discussed supra, in pari delicto’s test provides no substantive guidance, which causes inconsistent and potentially biased application.

In discussing tort doctrines other than contributory negligence that bar plaintiff from bringing suit, one commenter wrote:

[T]he emergence of a . . . [tort] defense that is a total bar to recovery is out of step with the strongest trend in modern American tort law because it ignores fault on the part of the defendant and focuses wholly on the fault of the plaintiff . . . Courts should be reluctant to expansively create doctrines . . . which abrogate state comparative law schemes.[87]

Apportioning liability in accordance with each party’s causal contribution to the plaintiff’s injury complies with modern tort trends and aligns with elementary perceptions of fairness.[88]  Accordingly, the evolution of contributory negligence into comparative fault “ranks as the most important development of the field of tort law in the last hundred years.”[89]  Because in pari delicto defeats this important development in jurisdictions that have embraced it, courts need to adopt a new approach that is consistent with comparative fault and/or modified comparative fault directives.

IV. Comparative Fault’s Apportionment Mechanisms Correct In Pari Delicto’s Shortcomings

This Article’s proposed solution is not earthshattering.  Instead, it calls for courts to abolish the use of in pari delicto in tort cases and rely on comparative or modified comparative fault frameworks, reducing plaintiff remedies in accordance with his or her causal contribution to the harm—rather than barring plaintiff recovery after a subjective morality assessment.  Typically, however, comparative fault enabling statutes or judicial opinions adopting comparative fault provide little guidance for courts and juries in assessing a plaintiff’s causal contribution to the harm.[90]  For instance, Kentucky’s comparative fault statute, which mirrors many pure comparative fault enabling statutes,[91] provides simply that the factfinder shall assign each party a percentage of the total fault by “consider[ing] . . . the conduct of each party . . . and the extent of the causal relation.”[92]  While this statute outlines its overall approach in broad terms, it fails to explain the causal threshold necessary before the factfinder can begin assigning relative fault.  This section, then, will delineate that causal threshold.

A. Illegal Plaintiff Conduct Should be Apportioned by the Factfinder, First on the Basis of Causation and then on the Basis of Fault

While the causal relationship between conduct and harm is typically a matter of fact,[93] factfinders and courts still need clear guidelines to ensure that final decisions align with sound reasoning.  The proposal will rely on causal principles established by the Third Restatement of Torts.[94]

By way of review, for a defendant to be a legal cause of harm, the defendant’s conduct must be a factual cause of the harm, and the harm must be within the defendant’s scope of liability.[95]  In the typical tort case, factual cause is relatively easy to show[96] and merely asks the factfinder to imagine the same factual scenario without the defendant’s tortious conduct.  If the factfinder, in entertaining such a hypothetical, finds that the injury would not have occurred without the defendant’s conduct, the defendant is a factual cause of the harm.  Conversely, if the factfinder determines that the harm would have occurred without the defendant’s conduct, the defendant is not a factual cause of the harm.  As such, a defendant cannot be the cause of an injury that would have happened regardless of his or her actions.

The second element to establish causation in tort, scope of liability or proximate cause,[97] requires the defendant’s conduct to increase the risk that the type of injury suffered by the plaintiff would occur.[98]  Because this Article examines the relationship between a plaintiff’s conduct and his or her resulting harm, it is inappropriate to refer to this second causal requirement as being within the scope of liability, largely because plaintiff conduct does not open plaintiffs to liability but instead reduces their final remedy.  As such, this Article will refer to this requirement as being within the plaintiff’s “scope of responsibility.”

Combining these two causal elements, the causal relationship between a plaintiff’s wrongful conduct and his or her harm merely requires the same straightforward analysis except regarding the plaintiff’s conduct rather than the defendant’s.  Thus, the plaintiff’s wrongful acts, in order to have caused the plaintiff’s harm, must be a factual cause of the harm and within the plaintiff’s scope of responsibility.  If either of these requirements fail, there is no causal relationship, and the plaintiff’s misconduct did not cause the harm. In such circumstances, courts cannot bar the plaintiff’s suit, regardless of the plaintiff’s illegal conduct.  Furthermore, without a causal relation between the plaintiff’s illegal conduct and the harm, factfinders cannot reduce the plaintiff’s remedy under comparative fault.

On the other hand, if the plaintiff’s conduct satisfies both causal elements, then the plaintiff causally contributed to his or her injury.  At that point, since both parties are a cause of the harm, the factfinder must assign fault percentages to each party through apportionment mechanisms.[99]  Importantly, some states include moral culpability as a factor in apportionment mechanism, but this consideration is made by the factfinder after the case-determinative dismissal and summary judgment thresholds.[100]  In this important respect, the subsequent weighing of moral considerations by the factfinder would not per se bar recovery.  As an example, consider the facts of Zysk v. Zysk,[101] a case in which the plaintiff’s premarital intercourse resulted in her contracting a sexually transmitted disease (“STD”).[102]

On the facts of the case, there is no question that Zysk’s premarital sex was a factual cause of her injury.  Had Zysk not engaged in sexual intercourse with her soon-to-be-husband,[103] she would not have contracted his STD at the time of her injury.  In other words, Zysk contracted the STD because she engaged in premarital sex.  Regarding Zysk’s scope of responsibility, however, we must examine Zysk’s wrongful conduct and its risk relationship to her harm.  To be clear, the court denied Zysk recovery because her conduct was illegal.[104]  As such, the question becomes whether her illegal conduct, i.e., premarital sex, increased her risk for contracting the STD.  It did not.

The risk of contracting herpes from a sexual partner varies according the presence of sores on the carrier’s genitals and the use of protection.[105]  That risk, however, is completely unrelated to the marital status of the sexual partners.  Thus, had Zysk waited a few months until marriage, thereby rendering her sexual intercourse lawful, her risk of contracting her husband’s concealed STD would have been the same.  This is an obvious example of illegal plaintiff conduct that did not increase the risk of the plaintiff’s injury and was therefore outside of her scope of responsibility.  Because Zysk’s conduct was a factual cause of her harm but not within her scope of responsibility, Zysk’s illegal conduct did not cause her injury in accordance with tort precepts.  Thus, Zysk’s case against her husband should not be barred since her illegal conduct did not causally contribute to her harm.[106]  Similarly, Zysk’s recovery should be subject to no remedy reduction since she did not contribute to her injury.[107]

Applying this approach to Orzel v. Scott Drug Co., discussed above, Orzel’s illegal conduct, i.e., misrepresenting himself to medical professionals to obtain additional prescriptions for Desoxyn,[108] factually contributed to his harm, especially when such actions enabled him to consume nearly eight pills per day.  Had Orzel not engaged in such actions, he would not have developed many of his harms, including amphetamine psychosis.  Similarly, Orzel’s fraudulent acquiring of excess pills[109] increased his risk for developing those harms, particularly because he had become an addict and was prone to consuming numerous pills per day.  Thus, Orzel factually caused his harm, and his harm was within his scope or responsibility.  As a result, Orzel legally caused his harm.  So too, however, did Scott Drug Co., which negligently sold Orzel dangerous amounts of Desoxyn for “illegitimate purposes” in violation of statutory and common law duties.[110]

Under in pari delicto and the wrongful conduct rule, the Michigan Supreme court barred Orzel’s claim[111] despite Michigan’s adoption of modified comparative fault.[112]  Under the proposed approach, however, because both parties causally contributed to Orzel’s harm, Scott Drug Co. would not get a windfall for its negligent (or willful) conduct.  Instead, the factfinder would assign fault percentages to each party in tandem with their relative fault and reduce Orzel’s remedy accordingly.  Thus, this approach would not bar Orzel from recovering for harms caused by Scott Drug Co.  Interestingly, this is similar to the jury’s decision at trial before Scott Drug Co. moved for a judgment notwithstanding the verdict.[113]

This causal method for liability apportionment rectifies the problems implicated by in pari delicto in tort law.  Where in pari delicto calls for judges to weigh each parties’ subjective moral culpability at case-determinate thresholds, this approach examines the causal relationship between the parties’ conduct and the resulting harm, which does not require a subjective analysis.  Furthermore, this approach applies consistent, well-established causation principles to the facts of the case.  Adopting this approach, then, will not only shore up the inconsistent application of in pari delicto, but it will also reduce the risk of judicial bias unfairly influencing judgments against potentially unattractive plaintiffs.

Finally, this approach complies with, rather than subverts, the directives of comparative and modified comparative fault.  Thus, in pure comparative fault jurisdictions, courts will not bar plaintiffs from recovery due to their wrongful acts if the defendant’s tortious conduct caused the plaintiffs harm.[114]  In modified comparative fault jurisdictions, courts will not bar plaintiffs from recovery if they’re share of the fault—as determined by the factfinder—is equal to or less than 50 percent.[115]  Recently, courts have employed the wrongful conduct rule, discussed supra, to bar opioid addicts from suing pharmaceutical companies that negligently or willfully enabled/caused their addiction.[116]  This approach, rather than barring the claims, would discount plaintiff recovery in accordance with their fault, allowing those predatorial companies to be held accountable for their harmful business practices.

B. The Shortcomings of Using Comparative Fault Mechanisms for Illegal Plaintiff Conduct

Although the suggested approach corrects many of the problems implicated in in pari delicto and its variants, it does have shortcomings.  As noted above, some courts employ in pari delicto to eliminate cases before trial based on the plaintiff’s misconduct.[117]  Because the proposed approach, however, requires juries to apportion liability in those cases where both the plaintiff and defendant have caused the plaintiff’s harm, it calls for more cases going to trial.  While the proposed approach may slightly hurt courts’ dockets, it will better apportion liability among those that caused a plaintiff’s harm rather than placing the entire cost of the injury on the plaintiff.

V. Conclusion

In pari delicto has provided numerous windfalls to defendants that tortiously caused harm to plaintiffs.  While these cases constitute a relatively small subset of all tort claims each year, court reliance on in pari delicto defeats some of tort law’s most celebrated principles.  Moreover, various plaintiffs who have been seriously harmed by the tortious conduct of another go without remedy.

This Article started with a tragic case that denied relief to the surviving family members of ten Mexican nationals notwithstanding the defendants’ tortious role in those nationals’ deaths.[118]  Rather than barring recovery under in pari delicto in such cases, courts should use well-reasoned comparative fault principles, allowing the factfinder to adjust recovery first on the basis of causation and then on the basis of fault.  In this manner, tortfeasors such as Arnulfo Flores and Union Pacific Railroad will not escape liability simply because their victims were engaged in wrongful conduct.

Tort reform replaced contributory negligence with comparative fault because courts and commenters agreed that contributory negligence’s per se recovery bar was not fair.[119]  That sense of unfairness stemmed from the following notion: when multiple parties unreasonably act to cause the plaintiff’s harm, the costs of that harm should not be allocated to only one party; rather, the costs should be apportioned between them.  Employing in pari delicto to bar plaintiff recovery based on moral unattractiveness mirrors the unfairness that necessitated replacing contributory negligence with comparative fault.  Therefore, it is time in pari delicto shared the same fate.


      [1].   Esparza Rico v. Flores, 405 F. Supp. 2d 746, 751 (S.D. Tex. 2005), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007) (reversing the district court’s finding that there was improper joinder of two defendants).

      [2].   Id.

      [3].   Id.

      [4].   Id.

      [5].   Id.

      [6].   Id. at 751–52.

      [7].   Id. at 752.

      [8].   8 U.S.C. § 1324.  The Ninth Circuit ruled this act unconstitutional in United States v. Sineneng-Smith, 910 F.3d 461, 485 (9th Cir. 2018), rev’d, 140 S. Ct. 1575 (2019).

      [9].   Esparza Rico, 405 F. Supp. 2d at 764–68.

     [10].   Brian A. Blum & Amy C. Bushaw, Contracts: Cases, Discussion, and Problems 519, 522 (4th ed. 2017) (identifying in pari delicto as a defense in contracts).

     [11].   Espraza Rico, 405 F. Supp. 2d at 764–68.

     [12].   Inge v. McClelland, 725 F. App’x 634, 636 (10th Cir. 2018).

     [13].   Id.

     [14].   Id.

     [15].   Id.

     [16].   Id.

     [17].   Id. at 638–39; see also N.M. Stat. Ann. § 30-31-23 (prohibiting possession of a controlled substance).

     [18].   Stopera v. DiMarco, 554 N.W.2d 379, 380 (1996).

     [19].   Id.

     [20].   Id.

     [21].   Id.

     [22].   Id.; see Mich. Comp. Laws § 750.30.

     [23].   Stopera, 554 N.W.2d at 381.

     [24].   Id.

     [25].   See id. at 381, 382 n.5.

     [26].   E.g., Zysk v. Zysk, 404 S.E.2d 721, 722 (Va. 1990).

     [27].   Note here that the Michigan Court of Appeals only reversed the trial court’s dismissal of Stopera’s claim.  Stopera, 554 N.W.2d at 382.  Whether DiMarco ultimately evaded liability is unknown.

     [28].   Restatement (Third) of Torts: Apportionment of Liab. § 26 cmt. a (Am. L. Inst. 2000) (“No party should be liable for harm it did not cause, and an injury caused by two or more persons should be apportioned according to their respective shares of comparative responsibility.”).

     [29].   Restatement (Second) of Torts § 918 cmt. a (Am. L. Inst. 1979) (“One is not barred from recovery for an interference with his legally protected interests merely because at the time of the interference he was committing a tort or a crime.”).

     [30].   Joseph H. King, Jr., Outlaws and Outlier Doctrines: The Serious Misconduct Bar in Tort Law, 43 Wm. & Mary L. Rev. 1011, 1018 (2002) (explaining that tort law does not “inquire into the moral fiber of the plaintiff”).

     [31].   See Ardinger v. Hummell, 982 P.2d 727, 736 (Alaska 1999) (“[I]n those cases in which recovery is barred on public policy grounds, the result mirrors the outcome of the abandoned contributory negligence rule.”).

     [32].   Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306 (1985) (quoting In pari delicto potior est conditio possidentis [defendentis], Black’s Law Dictionary (5th ed. 1979)).

     [33].   Matthew D. Menghini, Note, The Availability of the In Pari Delicto Defense in Tippee-Tipper Rule 10b-5 Actions After Dirks v. SEC, 62 Wash. Univ. L. Rev. Q. 519, 519 (1984).

     [34].   Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 574 (7th Cir. 2004).  Another example: if Annette hires Jean to set fire to her house and Jean fails to perform, the doctrine of in pari delicto would constitute a defense to Annette’s breach of contract claim.

     [35].   Id.

     [36].   See Bateman Eichler, Hill Richards, Inc., 472 U.S. at 306 (“[D]enying judicial relief to an admitted wrongdoer is an effective means of deterring illegality.”).

     [37].   Id. While courts in the late eighteenth century appreciated the need to prevent themselves from becoming arenas for disputing illegal enterprise, one commenter, Lord Mansfield, vehemently expressed his disdain for those who would invoke the doctrine:

The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant.  It is not for his sake, however, that the objection is ever allowed; but is founded in general principles of policy, which the defendant has the advantage of, contrary to real justice, as between him and the plaintiff, by accident, if I may so say.

Holman v. Johnson [1775] 98 Eng. Rep. 1120, 1121.

     [38].   Blum & Bushaw, supra note 10, at 522.

     [39].   Id.

     [40].   Id.

     [41].   Id.

     [42].   T. Leigh Anenson, Treating Equity Like Law: A Post-Merger Justification of Unclean Hands, 45 Am. Bus. L.J. 455, 482 (2008).  It is important to note that, prior to the eleventh and twelfth century, equity and law operated together.  George Burton Adams, The Origin of English Equity, 16 Colum. L. Rev. 87, 91 (1916).  Their eventual separation, which would persist for centuries, resulted from power struggles between English barons and the king.  Roger L. Severns, Nineteenth Century Equity: A Study in Law Reform- Part I, 12 Chi.-Kent L. Rev. 81, 91 (1934); William F. Walsh, Equity Prior to the Chancellor’s Court, 17 Geo. L.J. 97, 100–06 (1929).

     [43].   See, e.g., Esparza Rico v. Flores, 405 F. Supp. 2d 746, 767­–68 (S.D. Tex. 2005), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007).

     [44].   See, e.g., Manning v. Noa, 76 N.W.2d 75, 78 (Mich. 1956); Pinter v. James Barker, Inc., 116 A. 498, 498 (Pa. 1922).

     [45].   Blum & Bushaw, supra note 10, at 522.

     [46].   Compare Inge v. McClelland, 725 F. App’x 634, 636 (10th Cir. 2018) (conflating in pari delicto with tort’s “wrongful conduct rule”), and Espraza Rico, 405 F. Supp. 2d at 760 (arguing that in pari delicto is the same tort doctrine as “unlawful acts”), with Smith v. Long, 281 A.D.2d 897, 898 (N.Y. App. Div. 2001) (conflating in pari delicto with unclean hands), and Tex. Cap. Bank, N.A. v. First Am. Title Ins. Co., No. 3:09CV-661-H, 2012 WL 443460, at *2 (W.D. Ky. Feb. 10, 2012) (defining two negligent tortfeasors that serendipitously cause the plaintiff’s harm as in pari delicto).

     [47].   See, e.g., Inge, 725 F. App’x at 636 (conflating in pari delicto with tort’s “wrongful conduct rule”).

     [48].   The unlawful acts doctrine is also called the “outlaw doctrine,” the “ex turpi rule,” the “wrongful-conduct rule,” and the “serious misconduct doctrine.”  King, supra note 30, at 1020, 1020 n.35.

     [49].   Rico v. Flores, 481 F.3d 234, 237 (5th Cir. 2007).

     [50].   Esparza Rico, 405 F. Supp. 2d at 764–67, 770–71 (explaining that “[r]esolution of this matter hinges upon determining the applicability of the in pari delicto or unlawful acts rules in wrongful death actions”), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007).

     [51].   See, e.g., Inge, 725 F. App’x at 636; Stopera v. DiMarco, 554 N.W.2d 379, 381 (Mich. Ct. App. 1996).

     [52].   As a reminder, contributory negligence is a tort doctrine that prevents a plaintiff from recovering in tort if he or she is even 1 percent at fault for causing the injury.  The states still employing contributory negligence are Alabama, the District of Columbia, Maryland, North Carolina, and Virginia.  Matthiesen, Wickert & Lehrer, S.C., Contributory Negligence/Comparative Fault in All 50 States 2 (2019),

     [53].   Robert A. Prentice, Of Tort Reform and Millionaire Muggers: Should an Obscure Equitable Doctrine be Revived to Dent the Litigation Crisis?, 32 San Diego L. Rev. 53, 122 (1995).

     [54].   King, supra note 30, at 1018.

     [55].   See Restatement (Third) of Torts: Apportionment of Liab. § 7 (Am. L. Inst. 2000).

     [56].   Id.

     [57].   See, e.g., Cork v. St. Charles County, 10 S.W.3d 608, 609 (Mo. Ct. App. 2000).

     [58].   Id.

     [59].   See, e.g., Ardinger v. Hummell, 982 P.2d 727, 736 (Alaska 1999) (weighing whether the plaintiff’s illegal conduct should bar his suit by considering the policy implications); Orzel ex rel. Orzel v. Scott Drug Co., 537 N.W.2d 208, 217 (Mich. 1995) (providing a conclusion about the relative moral culpability between the parties without substantive discussion).

     [60].   537 N.W.2d 208 (Mich. 1995).

     [61].   Id. at 210.  At the time, methamphetamine was a schedule 2 controlled substance and available by valid prescription.  Id.

     [62].   Id. at 211.

     [63].   Id.

     [64].   Id.

     [65].   Id.

     [66].   Id. at 210.

     [67].   Id. at 212.

     [68].   Id.

     [69].   Id.

     [70].   Id.

     [71].   Id.

     [72].   Id. at 217–18.

     [73].   Id. at 215.

     [74].   Id. at 217.

     [75].   James J. Gobert & Ellen Kreitzberg, Jury Selection: The Law, Art and Science of Selecting a Jury § 7:4 Actual, Implied, and Inferred Bias (2020).

     [76].   See Gail D. Hollister, Tort Suits for Injuries Sustained During Illegal Abortions: The Effects of Judicial Bias, 45 Vill. L. Rev. 387, 429 (2000).

     [77].   Orzel, 537 N.W.2d at 213; (“[S]ome wrongdoers would be able to receive a profit or compensation as a result of their illegal acts.”); see also Inge v. McClelland, 725 F. App’x 634, 639 (10th Cir. 2018) (applying New Mexico law) (“Nor does the law allow them to ‘profit’ from their own illegal conduct.”); Esparza Rico v. Flores, 405 F. Supp. 2d 746, 751 (S.D. Tex. 2005) (“One can certainly argue without appearing too unsympathetic that a person cannot and should not be able to profit from his or her own illegal activities.”), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007); Zysk v. Zysk, 404 S.E.2d 721, 722 (Va. 1990) (“The rule mainly is premised on the idea that courts will not assist the participant in an illegal act who seeks to profit from the act’s commission.”).

     [78].   See Hollister, supra note 76, at 392.

     [79].   Marc A. Franklin et al., Tort Law and Alternatives 435–42 (10th ed. 2016).

     [80].   See infra Subpart IV.A.

     [81].   See Franklin et al., supra note 79, at 1–3.

     [82].   Restatement (Third) of Torts: Apportionment of Liab. § 7 (Am. L. Inst.  2000).

     [83].   Id. § 26 cmt. c (explaining that the two-step apportionment process apportions first on causation and then on relative party fault for indivisible harms).

     [84].   Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 3 (“Under Modified Comparative Fault System, each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage (e.g., 50% or 51%).  If the plaintiff’s own negligence reaches this percentage bar, then the plaintiff cannot recover any damages.  There are competing schools of thought in the 33 states that recognize the Modified Comparative Fault Rule.”).

     [85].   See, e.g., Inge v. McClelland, 725 F. App’x 634, 636 (10th Cir. 2018) (barring the plaintiffs’ claims despite New Mexico’s adoption of pure comparative fault); Esparza Rico v. Flores, 405 F. Supp. 2d 746, 764–68 (S.D. Tex. 2005) (barring the plaintiffs’ claims via in pari delicto despite Texas’s adoption of modified comparative fault), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234 (5th Cir. 2007); Orzel ex rel. Orzel v. Scott Drug Co., 537 N.W.2d 201, 217 (Mich. 1995) (barring the plaintiff’s claim despite Michigan’s adoption of modified comparative fault); Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 2–6.

     [86].   Vincent R. Johnson, The Unlawful Conduct Defense in Legal Malpractice, 77 UMKC L. Rev. 43, 78–79 (2008) (“Nevertheless, the widespread endorsement of comparative negligence and comparative fault in forty-six states cannot be ignored.  The substitution of proportionality principles for the earlier all-or-nothing rule of contributory negligence ranks as the most important development of the field of tort law in the last hundred years.”).

     [87].   Id. at 79.

     [88].   See Restatement (Third) of Torts: Apportionment Liab. § 7 cmt. j (Am. L. Inst. 2000) (listing pure comparative fault statutes that track with the Restatement approach).

     [89].   Johnson, supra note 86, at 79.

     [90].   See, e.g., Ky. Rev. Stat. Ann. § 411.182 (West).

     [91].   See, e.g., Ariz. Rev. Stat. Ann. § 12-2505; Fla. Stat. § 768.81(2); Miss. Code Ann. § 11-7-15.

     [92].   Ky. Rev. Stat. Ann. § 411.182(2) (West).

     [93].   See Restatement (Third) of Torts: Apportionment of Liab. § 26 cmt. c (Am. L. Inst. 2000).

     [94].   See Restatement (Third) of Torts: Physical & Emotional Harm §§ 26, 29 (Am. L. Inst. 2010); Restatement (Third) of Torts: Apportionment of Liab. § 26 cmt. c (Am. L. Inst. 2000).

     [95].   Restatement (Third) of Torts: Physical & Emotional Harm §§ 26, 29 (Am. L. Inst. 2010).

     [96].   Robin Kundis Craig, Michael D. Green, Andrew R. Klein & Joseph Sanders, Toxic and Environmental Torts 159 (2011).

     [97].   Restatement (Third) of Torts: Physical & Emotional Harm § 29 cmt. a (Am. L. Inst. 2010).

     [98].   Id. at § 29 cmt. d illus. 3.  An illustration clarifies this rule:

Richard, a hunter, finishes his day in the field and stops at a friend’s house while walking home.  His friend’s nine-year-old daughter, Kim, greets Richard, who hands his loaded shotgun to her as he enters the house.  Kim drops the shotgun, which lands on her toe, breaking it.  Although Richard is negligent for giving Kim his shotgun, the risk that makes Richard negligent is that Kim might shoot someone with the gun, not that she would drop it and hurt herself (the gun was neither especially heavy nor unwieldy).  Kim’s broken toe is outside the scope of Richard’s liability, even though Richard’s tortious conduct was a factual cause of Kim’s harm.

     [99].   Restatement (Third) of Torts: Apportionment of Liab. §§ 8 & 26 (Am. L. Inst. 2000).

   [100].   Id. § 26.

   [101].   404 S.E.2d 721 (Va. 1990).  Note that this case occurs in Virginia, which still applies contributory negligence.  In such jurisdictions, it is equally important that courts get the causal inquiry correct.  Incorrectly finding a causal link between the plaintiff’s conduct and the resulting injury in contributory negligence jurisdictions similarly bar the claim.  See Franklin et al., supra note 79, at 435.

   [102].   Zysk, 404 S.E.2d at 721.

   [103].   Id.

   [104].   Id. at 722.

   [105].   Sexually Transmitted Infections, S.F. City Clinic (last visited Sept. 24, 2020),

   [106].   Remember that Virginia still adheres to contributory negligence.  Because Zysk’s illegal conduct did not causally contribute to her harm, however, the court should not have barred her recovery under contributory negligence.  See Franklin et al., supra note 79, at 435.

   [107].   Restatement (Third) of Torts: Apportionment of Liab. §§ 8 & 26 (Am. L. Inst. 2000).

   [108].   Orzel ex rel. Orzel v. Scott Drug Co., 537 N.W.2d 208, 211 (Mich. 1995).

   [109].   Id.

   [110].   Id. at 217 (“The defendant filled many Desoxyn prescriptions for John Orzel, and, when it did, its conduct was seriously blameworthy. The defendant filled Desoxyn prescriptions for John Orzel without first confirming his identity, it filled the prescriptions too frequently, and it filled them for arguably illegitimate purposes.”).

   [111].   Id. at 221.

   [112].   Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 5.

   [113].   Orzel ex rel. Orzel, 537 N.W.2d at 212 (addressing the approach followed by the trial court in its unpublished opinion).

   [114].   See Matthiesen, Wickert & Lehrer, S.C., supra note 52, at 2.

   [115].   Id. at 4.

   [116].   See Samuel Fresher, Comment, Opioid Addiction Litigation and the Wrongful Conduct Rule, 89 U. Colo. L. Rev. 1311, 1320–26 (2018).

   [117].   King, supra note 30, at 1077 n.56.

   [118].   Esparza Rico v. Flores, 405 F. Supp. 2d 746, 764–68 (S.D. Tex. 2005), rev’d on other grounds sub nom. Rico v. Flores, 481 F.3d 234, 236, 244 (5th Cir. 2007) (affirming the district court barring plaintiff recovery).

   [119].   See Franklin et al., supra note 79, at 439–40.

By: Katherine Wenner & Holly Ingram

On February 6, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for Campbell v. Boston Scientific Corporation. The case affirmed a major products liability decision involving four plaintiffs, where each plaintiff received awards for over $4 million.

I. Facts and Procedural History

The case involved four plaintiffs who were each involved in a multidistrict litigation, which encompassed over 25,000 cases total. Defendant Boston Scientific Corporation (“BSC”) manufactured a transvaginal mesh prescription medical device, called Obtryx Transobturator Mid-Urethral Sling System (“Obtryx”) which was approved by the Food and Drug Administration (“FDA”) under its 510(k) approval process. That process approves products which are “substantially equivalent” to a device already approved on the market and does not require clinical trials. The problem with the device, according to the plaintiffs’ experts, was that it could degrade when implanted and cause the growth of scar tissue. Over the course of a few years, each of the plaintiffs experienced device dysfunction and brought separate lawsuits against BSC. Their claims were filed against BSC directly into a pre-existing Judicial Panel on Multidistrict Litigation, which is pending in the Southern District of West Virginia. The district court consolidated several cases before case-specific discovery began. BSC moved to conduct separate trials for the cases at issue today, but the motion was denied.

There were also two evidentiary motions that occurred prior to trial. In one motion, BSC moved to exclude evidence of the Marlex polypropylene’s MSDS, but this was denied. Additionally, plaintiffs moved to exclude evidence regarding the FDA’s 510(k) process and approval. This motion the district court granted.

Following an eleven-day trial, the jury returned verdicts in favor of plaintiffs, awarding $250,000 for past-compensatory damages, $1,000,000 for punitive damages, and future-compensatory damages ranging from $3–4.5 million dollars to each plaintiff.

BSC appealed the judgments on the grounds that the district court abused its discretion by (1) consolidating the four cases for trial; (2) permitting the MSDS evidence; and (3) excluding the 510(k) evidence. It also challenged the verdicts for lacking sufficient evidence and challenged the punitive damages awards, asserting there was an erroneous jury instruction.

II. The District Court did not abuse its discretion in consolidating the four cases, excluding the 510(k) evidence, or permitting the MSDS evidence.

The Fourth Circuit concluded that consolidating the independent cases did not render the decision unfair because the court first identified many common questions of law and fact across the trials. Additionally, the plaintiffs shared expert witnesses and presented much of the same evidence. Thus, the trials would have been largely repetitive and caused undue burdens, delays, and expenses. Moreover, the district court adequately endeavored throughout the trial to limit any potential jury confusion or prejudice. BSC lacked evidence to claim that the district court’s safeguards were inadequate. Further, although the four awards were similar, the damages were not identical. This evidenced that the merely similar values were because of the acute similarities between the injuries—which further justifies the consolidation. The Fourth Circuit ultimately notified that this illustrates the effectiveness of streamlining the judicial process, especially in cases such as this Multidistrict Litigation, which has over 25,000 cases involved.

Turning to the evidentiary dispute, the Fourth Circuit concluded that exclusion of the 510(k) evidence was not an abuse of discretion. BSC attempted to use this to argue that its conduct was reasonable. Yet, the court noted that although the 510(k) clearance may have said something about the safety of the product, it did not say anything very specific. Further, it would likely have only amplified the risk of confusion and wasted time. Thus, exclusion was not an abuse of discretion.

Next the Fourth Circuit concluded that including the MSDS was not inadmissible hearsay, as BSC so argued, because it was not admitted for the truth of the matter asserted. While it may have suggested that the company should have further investigated the safety of their product, it did not evince that the warning was actually correct. Thus, including the evidence was appropriate, and the district court did not abuse its discretion.

III. BSC was not entitled to judgment as a matter of law and the district court used the proper standard to instruct the jury on punitive damages.

Moving on to BSC’s contention that it was entitled to judgment as a matter of law, BSC argued that the plaintiffs did not have sufficient evidence for their claims. However, the Fourth Circuit noted that jury verdicts are only set aside in unusual circumstances, which were not present in this case. The plaintiffs identified several aspects of the Obtryx’s design that contributed to its danger and presented evidence of safer alternative designs that existed. BSC claimed that the jury should have been instructed that a safer alternative was an element of the plaintiffs’ claim, but the Fourth Circuit noted that this argument was made for the first time on appeal and was therefore inappropriate.

Under the failure to warn claims, BSC argued that the plaintiffs’ testimony was also inadequate. However, because the plaintiffs did provide testimony, then it was sufficient. The court agreed that expert testimony may have been helpful, but it was not required.

Finally BSC challenged that the district court’s jury instruction standards for punitive damages. However, the court concluded that the district court’s instruction was a correct statement of West Virginia law at the time. Since the time of trial, the West Virginia legislature has changed its statute regarding the award of punitive damages, but the new statute was not in effect at the time of the trial. Therefore, the punitive damages award was also affirmed.

IV. Conclusion

Because the district court did not abuse its discretion or use any improper legal standards, the judgments of the district court were affirmed.


By Daniel Stratton

On December 29, 2015, the Fourth Circuit affirmed in part, and reversed in part, a district court’s dismissal of an inmate’s Federal Tort Claims Act (“FCTA”) claim, after he was stabbed and severely beaten by fellow inmates  in the published civil case Rich v. United States. The appellant, Joshua Rich, argued on appeal that the district court incorrectly dismissed his claim after determining that the FCTA’s discretionary function exception applied to the prison officials’ conduct. The Fourth Circuit, after reviewing Rich’s appeal, affirmed the district court’s determination that the prison officials’ decisions on prisoner placement were shielded by the discretionary function exception, but reversed the lower court’s decision regarding Rich’s opportunity to engage in discovery about the prison officials’ claims that they properly searched Rich’s attackers before placing them in proximity to Rich.

Rich is Sentenced to Fifty-Seven Years, Claims He was Targeted by Aryan Brotherhood While Incarcerated

In 2008, Rich was sentenced by the U.S. District Court for the District of Utah to fifty-seven years’ imprisonment, following his conviction for armed bank robbery, and for carrying a firearm in relation to the crime. He entered the U.S. Bureau of Prison (“BOP”)’s custody in September 2008.

Rich alleges that he was targeted by the white supremacist group, the Aryan Brotherhood, almost immediately after entering the BOP’s prison system for refusing to participate in the group’s criminal activities. Rich was transferred to several prisons over the course of 2008 to 2011 and required separation from the Aryan Brotherhood. In February 2011, Rich was moved to a U.S. penitentiary in West Virginia, USP Hazelton. While at USP Hazelton, Rich was attacked by five inmates on August 5, 2011, after they were put into the same recreation area, or “cage.”

Rich was severely beaten and stabbed multiple times. His injuries included laceration to his liver, among others, and he underwent several invasive surgeries as a result. A nine-inch homemade knife was recovered in the cage where the attack occurred.

Rich sued the federal government under the FCTA, claiming negligence on the part of the prison officials when they failed to protect him from harm. He argued that the prison’s correctional officers should have kept him separated from his attackers, and that those officers had failed to properly screen or search the other inmates before placing them in the same cage as Rich. The government moved to dismiss Rich’s claim, asserting that the discretionary function exception applied to both the prison officials’ decisions about separating Rich and his attackers and to the way in which the officers searched the attackers. The district court agreed with the government, and additionally found that Rich was not entitled to any discovery about whether the prison had any directives mandating a particular approach to performing pat downs and searches. As a result, the district court granted the government’s motion to dismiss for lack of subject matter jurisdiction.

The FCTA, the Discretionary Function Exception, and Their Application to Federal Prisons

The United States is generally immune from suit under the legal doctrine of sovereign immunity, however the FCTA provides an exception. Under the FCTA, sovereign immunity is waived when the federal government “would be liable to the claimant in accordance with the law of the place where the act or omission occurred” for torts like negligence when they are committed by federal employees acting within the scope of their employment.  The FCTA’s discretionary function exception limits this waiver, however, in situations where an employee must perform a discretionary function or duty.

To determine whether conduct fits within this exception, courts generally apply a two-pronged test. First, the court determines if the challenged conduct involves an element of judgment or choice. If a statute, regulation, or policy sets out a specific course of action to the degree that there is no exercise of discretion, then the exception does not apply. If the action does involve an element of judgment, the court must then tackle the second prong, which is to determine whether the judgment was based on considerations of public policy. If it was, then a government employee defendant can assert that the court lacks subject matter jurisdiction under the exception.

If a defendant disputes the allegations in a complaint that could establish subject matter jurisdiction, a court may engage in an evidentiary hearing to determine if there are facts that support the jurisdictional allegations. Generally, under these circumstances, a plaintiff’s allegations in his complaint are not afforded a presumption of truthfulness. However, if the jurisdictional facts are intertwined with merit facts central to the complaint, a presumption of truthfulness will attach to the plaintiff’s claims. While the application of the discretionary function exception to decisions about the separation of prisoners is an issue of first impression for the Fourth Circuit, other circuits have weighed in on this issue previously.

The Fourth Circuit Decides that the Discretionary Function Exception Applies to Decisions about Separating Prisoners

The Fourth Circuit began its analysis by determining if the discretionary function exception applied to the prison officers’ decision to place Rich and his attackers in the same cage. The first step in this analysis was to apply prong one of the two-pronged test. Noting that the BOP is tasked with protecting and caring for all persons in its custody, the Fourth Circuit explained that the BOP retained discretion in implementing those tasks. Prison officials must consider and balance several factors when determining if an individual inmate may require separation. This, the Court concluded, satisfied the first prong of the test.

The Court, noting the issue of first impression, drew on other circuits’ experiences in determining whether the second prong was met. Other circuits, including the Seventh, Ninth, Eleventh have previously held that prisoner placement and potential threats to prisoners against one another was a standard part of the public policy considerations of maintaining order and security in federal prisons. Those circuits viewed factors such as available resources, proper classification of inmates, and appropriate security levels as inherent in various policy questions. Following in the other circuits’ footsteps, the Fourth Circuit agreed that prison officials should be afforded discretion in determining prisoner placement and separation. This, the Court held, meant that the discretionary function exception shielded prison officials from liability regarding whether they should have kept Rich separated from his attackers.  The Fourth Circuit, in turn, affirmed the lower court’s refusal to grant discovery on this issue.

Turning to the question of whether Rich should be granted discovery as to his allegations that the prison did not properly search the attackers before putting them in his recreation cage, the Fourth Circuit diverged from the district court. On this claim, the Fourth Circuit found that the disputed jurisdictional facts were intertwined with the merits of Rich’s claim that the prison had not properly executed pat downs of the attackers. Citing the fact that the prison officials’ signed declarations that they had performed pat downs of the attackers stood in contrast to Rich’s allegations, the Fourth Circuit explained that the allegations applied to both the merits of Rich’s claim as well as the jurisdictional questions over his claim.

The Court argued that a period of discovery would give Rich the opportunity to challenge the prison officials’ declarations that they carried out the searches. The Court also explained that even if they accepted the declarations as fact, those did not resolve the question about whether the pat down searches were carried out correctly. The Fourth Circuit reasoned that because the pat downs were to be conducted as outlined in the Correctional Services Manual, this suggested the existence of specific directives which Rich should be permitted to find in discovery.

Because inmates who have a history of weapons possession are required to undergo visual searches, including a body cavity search, prior to entering a recreation area, discovery could reveal whether any of the attackers had such a history and if such a search was undertaken.

The Court finally noted that Rich could potentially establish jurisdiction under this claim if he could show that the discretionary conduct engaged in by the prison officers was marked by carelessness or laziness, because such conduct cannot be grounded in policy decisions.

The Fourth Circuit Vacates and Remands to Allow Discovery on the Prison Officials’ Pat downs

While the Fourth Circuit affirmed that the discretionary function exception shielded the decision to place Rich and his attackers in the same recreation cage, the Court vacated and remanded to allow Rich to engage in discovery on the issue of whether and how prison officials performed pat downs and searches.


By Kayleigh Butterfield

On April 30, 2015, the Fourth Circuit issued a published opinion in the civil case Harris v. Norfolk Southern Railway Co. Norfolk Southern Railway Company (“Norfolk Southern”) appealed the district court’s grant of summary judgment against it on the issue of liability in a negligence action brought by Charles Harris, who sought compensation for injuries suffered from a train derailment. Harris cross-appealed the district court’s summary judgment grant against him on a claim for punitive damages. The Fourth Circuit reversed the grant of summary judgment on the issue of liability, affirmed the grant against punitive damages, and remanded the case for further proceedings.

Factual Background

On July 21, 2009, Harris was working at a coal-loading facility (“loadout”) in Mingo County, West Virginia. Norfolk Southern employees backed an empty train of freight rail cars over an area of the railroad track running underneath the loadout where Harris was working. Both the train and track were owned and operated by Norfolk Southern. A section of the rail about 35 feet from the loadout was heavily corroded between the ball and vertical part of the rail. When the rail cars passed over the damaged portion of the track, a part of the rail separated and the cars derailed. When one of the cars crashed into the loadout’s support beams, the loadout collapsed and Harris subsequently suffered severe physical and mental injuries. The evidence showed that most of the track damage occurred months or years prior to the derailment.

Standard of Review

Summary judgment is reviewed de novo, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is appropriate so long as the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Federal Rail Safety Act and Track Safety Standards

Under the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20101, et seq. Norfolk Southern has a duty to inspect the rail in accordance with the comprehensive track safety standards (“TSS”) as set forth by the Secretary of Transportation. 49 C.F.R. Part 213. The TSS sets forth minimum requirements for how inspections must be conducted and how issues should be remedied.

Norfolk Southern Breached Its Duty to Inspect

Section 213.5 of the TSS states that a track owner “who knows or has notice that the track does not comply with the requirements of this part” is responsible for remedying the problem in accordance with the TSS. The Fourth Circuit examined the plain language of the Federal Railroad Administration’s (“FRA”) commentary to the 1998 TSS amendments, and found that their reading of the phrase “knows or has notice” was reasonably interpreted to include constructive notice.

The Fourth Circuit then determined the scope of Norfolk Southern’s duty to inspect the track. While the court rejected Harris’ contention that a visual inspection requires someone to look at every part of the track structure, the court concluded that a reasonable visual inspection must be made in light of the surrounding circumstances. In this case, evidence was brought showing that Norfolk Southern knew that the obstruction of coal and debris on the tracks could cause corrosion. Despite this knowledge, Norfolk Southern failed to examine any of the embedded portion of the track over a period of months and years. Thus, the Fourth Circuit determined that any reasonable jury would find that Norfolk Southern breached its duty to inspect.

Genuine Dispute as to Proximate Cause

The Fourth Circuit concluded that a genuine dispute of material fact existed as to proximate cause. Expert testimony revealed that corrosion could have been detected through ultrasonic testing or digging out coal debris from the damaged parts of the track. However, the court noted that the testimony did not provide that the damage was consistent along the track or that it would necessarily be discovered by digging out sample areas of coal debris. Because a jury could reasonably find that Norfolk Southern’s breach was not the proximate cause of Harris’s injuries, the Fourth Circuit reversed summary judgment on the issue of liability.

Harris Did Not Meet Standard for Punitive Damages

The Fourth Circuit did not find that Norfolk Southern’s conduct met the standard of severe negligence required for an award of punitive damages. The court noted that Norfolk Southern conducted ultrasonic rail testing and visual inspections on a regular basis. While the defect remained undiscovered, the court held that Norfolk Southern’s actions simply did not rise to the near-reckless level of negligence needed to award punitive damages.


For the above reasons, the Fourth Circuit reversed the grant of summary judgment on the issue of Norfolk Southern’s liability, affirmed the grant of summary judgment on Harris’s claim for punitive damages, and remanded to the district court for further proceedings.