Ex-post right, ex-ante wrong.

AuthorPorat, Ariel
PositionAlternative liability rule applicability

ABSTRACT

Should a doctor be held liable under negligence law for harmful treatment she administered to a patient, if the treatment should have been considered negligent at the time it was administered, but is now considered reasonable at the time of trial? Should a manufacturer be held liable for harm caused to a consumer from a product that is considered reasonable, and therefore non-defective, at the time of trial, but that should have been considered unreasonable, and therefore defective, at the time of its distribution ? More generally put: Should the law impose liability for ex-post right but ex-ante wrong behaviors? The answer offered by this Article is yes, on both efficiency and corrective justice grounds. The Article also proposes the adoption, in certain cases, of an "alternative liability rule, " whereby an injurer bears liability if his behavior is either ex-post or ex-ante wrong.

Thus far, there are no reported cases where a plaintiff brought suit for ex-post reasonable but ex-ante unreasonable behavior or products. This is puzzling, especially given the abundance of reverse cases before the courts, where the defendant's behavior or product is found to be ex-post unreasonable but ex-ante reasonable, and liability is not imposed. The Article's explanation for the lack of suits for ex-post right but ex-ante wrong behavior is plaintiffs' and their attorneys' strong belief that when a behavior, or a product, is considered reasonable at the time of trial, it is considered reasonable by the law. The claim made in the Article is that this belief is unfounded and a plaintiff who proves ex-ante negligence should succeed at trial, regardless of whether the defendant's behavior is considered reasonable at that time.

INTRODUCTION

Injurers often do the wrong thing, which, in retrospect, turns out to be the right thing. Should they be held liable under current law if the ex-ante wrong but ex-post right behavior caused harm to a victim? This fundamental question, relevant to many legal fields, has never been given any clear answer, neither in the case law nor in scholarly writings. This Article offers an affirmative answer: yes, injurers should be held liable for ex-post right behavior if that behavior was ex-ante wrong. The Article also proposes and explores an innovative rule, termed the alternative liability rule, under which an injurer bears liability if his behavior is either ex-post or ex-ante wrong, showing that under certain conditions, which are often met in product liability cases, this is the optimal liability rule.

To illustrate the problem addressed in this Article, assume that a doctor must decide whether to operate on her patient. The doctor considers the reasonably available information about the patient's medical condition and negligently chooses not to operate. A few days later, the risk entailed by the doctor's decision not to operate materializes into harm. At that point, however, new information emerges that clearly indicates that given the ex-ante risks of operating versus not operating, the doctor's behavior was reasonable. Should the patient be allowed to recover, under negligence law, for the harm he suffered due to the doctor's ex-ante negligent but ex-post reasonable behavior?

A similar question may arise in any legal context where reasonableness is a criterion for liability (or defense). Consider the following example from products liability law: Suppose that a manufacturer of cellular phones is being sued by a consumer for harms caused by radiation from the phone. Assume that according to the information available at the time of the trial, the phones emit very low-risk radiation; therefore the way that the manufacturer produced its product--according to the same information--is considered reasonable and the product non-defective. Should the consumer, who suffered harm from the radiation, succeed at trial if she can show that according to the information that was reasonably available at the time of the product's distribution, the manufacturer should have suspected--erroneously, in retrospect--the radiation to be far riskier than what it actually is and, therefore, the product should be considered defective?

This Article claims that under the correct interpretation of the law, liability should be imposed on the injurer in both the medical malpractice and products liability cases and, more generally, in any case when the injurer was ex-ante negligent, regardless of whether his behavior is ex-post reasonable. This claim is based on efficiency as well as corrective justice grounds. In certain conditions, however, the innovative, alternative liability rule proposed in this Article should be preferable on efficiency, but not corrective justice, grounds. Therefore, proponents of efficiency, or, more generally, the maximization of social welfare, as the major goal of the law should advocate the adoption of the alternative liability rule, at least in certain cases.

Remarkably, I have been unable to find any case law addressing the possibility of tort liability for ex-post reasonable but ex-ante negligent behavior. Even more surprisingly, I have not found even a single case in which a plaintiff argues that despite the ex-post reasonableness of the defendant's injurious behavior--or the harm-causing product--she should be allowed to recover, because that same behavior should be considered ex-ante negligent. (1) This is puzzling, because numerous instances of the reverse case are brought to the courts, where the injurer's behavior is considered ex-post negligent, but he argues that he should not be held liable since his behavior should be considered reasonable according to the information reasonably available to him when he acted. (2) This parallel defensive claim of "ex-ante reasonableness" exists also in the area of products liability: manufacturers who are sued for design defects often raise the "state of the art" defense, arguing that even though the product is unreasonably dangerous, they could not have reasonably realized this when they distributed the product. (3)

If the claim made in this Article holds, many plaintiffs who have suffered harms from ex-post reasonable behavior or ex-post non-defective products could successfully sue their injurers. Why have they not yet done so? One possibility is that it is difficult for plaintiffs to prove in court that a behavior, or product, that is considered reasonable at the time of trial should be considered unreasonable at the time when the behavior took place. This cannot, however, explain the complete absence of suits of this kind. After all, plaintiffs commonly bring evidence relating to past events that occurred a long time prior to trial and succeed in convincing the court of the defendant's negligence. In my view, a better explanation for the lack of suits resting on ex-post reasonable but ex-ante negligent behavior is the strong belief of plaintiffs and their attorneys that when a behavior, or product, is considered reasonable at the time of trial--it is considered reasonable by the law. This Article shows that this belief is wrong.

The Article proceeds as follows. Part I makes the basic argument for liability for harms caused by ex-post reasonable but ex-ante negligent behavior. I term such cases ex-post reasonable/ex-ante negligent cases. The essence of the argument made is that the ex-ante perspective ("ex-ante rule"), rather than the ex-post perspective ("ex-post rule"), should be adopted in such cases and liability therefore imposed on the injurers for the harms caused to the plaintiffs. The absence of liability in these cases, the argument goes, will yield severe under-deterrence of injurers. The same argument is then applied to product cases. This is illustrated by the silicone breast implants litigation, where women who purchased and used the implants sued for harms they allegedly caused to them, based on the argument that the implants were a defective product. It is demonstrated that even though the implants are now regarded to be non-defective products, many plaintiffs should succeed at trial and recover for their harms if they can show that at the time that they purchased and used the implants, a reasonable manufacturer should have suspected--even if erroneously--the product to be unreasonably dangerous. Lastly, Part I generalizes the argument and sets it in a broader context.

Part II discusses three potential objections to the argument developed in Part I. The first is a causation argument inspired by notions of corrective justice. I show that corrective justice in fact supports, rather than precludes, the ex-ante rule, as do the principles of causation. A second objection is based on plaintiffs' lack of information about defendants' ex-ante behaviors. I show that this objection, too, is not persuasive. Finally, I discuss, and reject, the argument that the ex-post, rather than ex-ante rule should be adopted since the former allows defendants to enjoy their "good" luck and escape liability, which recalls the "moral luck" phenomenon in tort law. All three potential objections, although flawed in my view, could explain why plaintiffs and their attorneys might be strongly convinced that liability will not be imposed in ex-post reasonable but ex-ante negligent cases.

Part III compares the ex-post reasonable/ex-ante negligent cases with the reverse ex-post negligent/ex-ante reasonable cases and shows where they differ. This Part suggests that, in negligence cases, an ex-ante rule is indisputably more efficient than an ex-post rule, while in product cases, this is the case most of the time. A policy implication that arises from the analysis is that there are some clear advantages to an "alternative liability rule" for product cases, under which the manufacturer bears liability for harms whenever the product is unreasonably dangerous under either an ex-ante rule or ex-post rule. The Conclusion wraps up the discussion. I.

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