Say what?

That’s what we thought when we ran across Restatement §920 recently – it was by accident; we were researching something else.

The 900 section of the Second Restatement of Torts is about damages, and §920 has to do with mitigation of damages:

When the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.

The black letter is thus quite short. So, when does this “benefit” rule apply? The first example given in the commentary is of a surgeon, who violated the patient’s informed consent, but the surgery “averts future pain and suffering.” That benefit can reduce the amount of any award for pain and suffering caused by the improper surgery. Restatement §920, Illustration 1.

Lately we’ve seen Restatement §920 used mostly in the context of “wrongful birth” cases – where plaintiffs alleging some form of negligent failure to prevent conception of a child (such as failed sterilization of an ineffective contraceptive), were seeking to recover the expenses of raising a healthy child. Many states don’t allow such claims at all, but those that do rely on §920 to hold that the “benefits” of raising the child are to be subtracted from any recovery of costs. E.g., Tomlinson v. Metro. Pediatrics, LLC, 412 P.3d 133, 146 (Or. 2018) (“But allowing a parent to seek emotional distress damages does not require ignoring the emotional benefits that a parent may obtain from having a child. Instead, the jury may offset an award for emotional distress damages by the extent to which a parent receives emotional benefit from a child who resulted from a pregnancy that, but for the defendant’s negligence, would have otherwise been avoided or terminated.”).

But there’s no reason we can find to limit the use of §920’s mitigation principle to that narrow circumstance. Mitigation must relate to the “same interest,” so that going through some hellaciously painful experience (like being stranded in the wilderness by a plane crash) is not mitigated by the plaintiff later making money from writing a book about it. Restatement §920, comment b. But where we litigate, health is health. If damages for a faulty contraceptive can be reduced by the benefit of a healthy child, then adverse health effects – say chemotherapy making somebody’s hair fall out – should be reduced by the fact that the drug worked and put the plaintiff’s cancer into remission. The section’s causation requirement, “the benefit must result from the tortious conduct,” id., comment d, would also be satisfied in a prescription medical product case, since use of the purportedly “defective” drug/device would have produced both the alleged harm and the offsetting benefit. Likewise, the “equitable” caveat would not seem to preclude mitigation, since that caveat was intended “not to permit the tortfeasor to force a benefit on [a plaintiff] against [plaintiff’s] will.” Id., comment f. People use prescription medical products precisely to obtain the benefits that these products offer, so receipt of that benefit cannot be construed as “against [the user’s] will.”

We decided to take a look and see if Restatement §920 has been used in prescription medical product (or analogous) litigation. Guess what, it has. The issue was faced head on in Dopson-Troutt v. Novartis Pharmaceuticals Corp., 2013 WL 5304059 (M.D. Fla. Sept. 20, 2013), in a variant of the cancer drug hypothetical we mentioned above. The drug in question, while not curing cancer, was valuable in cancer treatment. Its use also had serious side effects, which plaintiff allegedly encountered. The court denied plaintiff’s attempt to exclude Restatement §920 mitigation evidence at trial, rejecting both equitable and different-interest arguments:

Plaintiffs contend that [the primary plaintiff] took [the drug] to delay the risk. . . . However, in arguing that [the drug] conferred no special benefit, Plaintiffs do not provide any authority showing what constitutes a special benefit and why delaying the risk . . . would not be a special benefit. Nor have Plaintiffs provided any authority supporting their contention that § 920 must be limited to wrongful birth cases.

Id. at *3. The court also found the surgeon hypothetical in Illustration 1 “at least arguably resembles the situation here.” Id. Thus, the Dopson-Troutt court held that the health benefit of a drug could mitigate damages allegedly caused by the health detriment of an adverse reaction:

Here, Plaintiffs contend that [the primary plaintiff] would not have taken the drug had she been adequately warned, and [defendant] “seeks to introduce evidence of medical harm she would have suffered but for taking the drug.” That seems reasonable to this Court.

Id.

Dopson-Troutt cited Guenther v. Novartis Pharmaceuticals Corp., 2013 WL 4456505 (M.D. Fla. Aug. 16, 2013), another case involving essentially the same facts that yielded the same result:

Courts have long recognized that tortfeasors sometimes cause not just damages but benefits to their victims, and under certain circumstances those benefits should be taken into consideration in calculating the compensation to which the victim is entitled. . . . The issue tends to arise most often in the context of so-called “wrongful births” . . ., [h]owever, the principle is not limited to this category of cases. . . . [Plaintiff] is arguing that she would not have consented to take [the drug] if she had been properly warned of its dangers, while [defendant] seeks to introduce evidence of medical harm she would have suffered but for taking the drug. At this stage of the proceedings, the Court cannot say with certainty that Section 920 of the Restatement (Second) cannot apply.

Id. at *2-3 (quotations from §920 and its comments omitted) (also denying motion in limine).

Beyond those two cases, however, we didn’t find much, and that surprises us. Notably, we also didn’t find any authority for the contrary proposition – that the health benefits of a drug/device to the plaintiff cannot be considered to reduce damages for an injury caused by the plaintiff’s use of that same product. When defendants lost Restatement §920 arguments, it was as a matter of law, but usually because: (1) they failed to meet their burden of proof of establishing the affirmative defense of mitigation, or (2) the benefit and injury involved different interests (as discussed above).

We did find a number of non-prescription medical product cases that applied §920 mitigation in cases not involving wrongful birth, and since they refute a plaintiff-side argument that §920 is somehow limited to those cases, we’ll list them. Eureka Broadband Corp. v. Wentworth Leasing Corp., 400 F.3d 62, 71 (1st Cir. 2005) (conversion) (applying Massachusetts law); Gawry v. Countrywide Home Loans, Inc., 640 F. Supp.2d 942, 958 (N.D. Ohio 2009) (creditor’s rights), aff’d, 395 F. Appx. 152 (6th Cir. 2010); Benfield, Inc. v. Moline, 2006 WL 1662759, at *1 (D. Minn. June 12, 2006) (conversion); Seippel v. Jenkens & Gilchrist, P.C., 341 F. Supp.2d 363, 384 (S.D.N.Y. 2004) (RICO); Los Angeles County Employees Retirement Ass’n v. Towers, Perrin, Forster & Crosby, Inc., 2002 WL 32919576, at *25 (C.D. Cal. June 20, 2002) (unjust enrichment).

Thus, the only two cases to have directly considered the applicability of the Restatement §920 offsetting benefit rule to benefits conferred by allegedly “defective” prescription medical products have held that it is applicable. But there’s very little law. Thus it strikes us that Restatement §920 is something pharmaceutical and medical device defendants should consider more often. If a medical device lasts 10 years before it breaks, and plaintiff sues for harm from the break, why shouldn’t the benefit conferred – ten years of pain-free use of the affected body part – be subtracted from the plaintiff’s claimed damages? Or wouldn’t the offsetting benefit zero out a plaintiff’s damages in a gynecomastia case, since the drug successfully treats serious mental conditions that can drive people insane.

Bottom line – the products that our clients make have all sorts of intended, and substantial, benefits. They ought to get credit for them.