Not too long ago we criticized a proposed “restatement” from the American Law Institute that sought to absolve plaintiffs who acted intentionally from having their conduct (such as stealing drugs, deliberately taking someone else’s prescription), count as comparative fault in the lawsuits such plaintiffs frequently file against our clients. That particular proposal has been withdrawn, at least for now.

We remain quite wary of an institutional bias in the ALI’s Restatement projects in favor of increasing liability. These projects are prepared largely (if not exclusively) by law professors whose jobs depend on their law students’ ultimately finding work, and they thus have an economic incentives to support increased litigation. Not to mention that many academics lack any real-world perspective about the true costs of liability-increasing proposals.

They’re doing it again. (Bexis is an ALI member, but don’t blame him for this).

We’ve reviewed “Preliminary Draft No. 1” of a new ALI project, the Restatement (Third) of Torts: Concluding Provisions, and we’re not happy – not one bit. It contains a smorgasbord of pro-plaintiff proposals that for one reason or another didn’t make it into any of the prior Third Restatement projects. Briefly:

  • The draft proposes to endorse medical monitoring, even though it concedes that “courts and commentators are split of whether to accept or reject a cause of action for medical monitoring.” See p.55. We successfully fought off an attempt to have ALI backhandedly endorse liability for mere risk absent injury in the Aggregate Litigation Project, but now pro-plaintiff professors are proposing to have the ALI do so explicitly.
  • The draft proposes to abolish the in pari delicto doctrine (often applied to the scenarios described in the first paragraph of this post). Under this proposal, a plaintiff injured as a consequence of his/her criminal activity – such as by having stolen or otherwise illegally obtained the product that caused the injury – could now recover, with the bar of in pari delicto replaced with watered down “comparative fault.” See pp. 155-65.
  • The draft also proposes to expand liability for informed consent. It proposes that doctors “must provide any other relevant information that the provider is aware that the patient wants to know.” See p. 49. That’s a far cry from the current duty physicians have to provide information about risks, benefits, and alternatives of medical procedures – and would allow claims based on anything a plaintiff would testify that, in hindsight, s/he indicated s/he would have liked to have known, such as a prescribed product’s FDA regulatory status or how much malpractice insurance the doctor carries.
  • The draft proposes to expand loss of consortium to include both parent/child and child/parent consortium. It also allows (without citing anything) loss of consortium despite a divorce, for the period prior to the divorce. See pp. 112, 131, 142.

Bexis will fight the good fight once again − and can use all the help he can get − against the “Always Liability Increases” viewpoint of ALI restatement projects. But remember, restatements are only informed commentary, unless a state (such as Oregon with Restatement (Second) of Torts §402A (1965)) chooses to make it more.

Or less.

Given ALI’s recent tendency to veer away from establish legal principles in favor of creating new forms of liability, we would be remiss not to point out that the states don’t have to take this lying down. Texas no longer does, as it recently declared:

In any action governed by the laws of this state concerning rights and obligations under the law, the American Law Institute’s Restatements of the Law are not controlling.

Tex. Civ. Prac. & Remedies C. §5.001(b).

We don’t want to see the ALI lose its credibility. The ALI’s restatements can be very valuable, such as the Restatement (Third) of Torts, Products Liability (of which, ironically, Texas was an early adopter). But if the ALI doesn’t put its own lid on the sort of liability über alles approach to tort law that runs rampant through this latest Preliminary Draft, we wouldn’t be surprised if quite a few states decide to follow Texas’ lead.