Michael Jackson and Emotional Damages

By Dov Fox

You know the King of Pop died in 2009 while rehearsing for a comeback tour in London. Here’s a twist you may not have heard about: Michael Jackson fan club members sued Conrad Murray, the doctor who administered the lethal overdose of anesthesia. And the celebrity enthusiasts won. A French court recently awarded five of the grieving fans economic damages (albeit just a euro each) to compensate for their emotional suffering.

The case highlights a neglected problem in our own law, not just medical malpractice, but constitutional and common law too. It’s this: Supreme Court rules and policies about harm, compulsion, and intentionality rely on the flawed assumption that operations of the mind are meaningfully distinct from those of the body. In our new essay on Dualism and Doctrine, Alex Stein and I (1) demonstrate just how this fiction distorts the law, (2) argue that the reasons for its persistence cannot save it, and (3) identify the ways in which courts should uproot dualism’s pernicious influence on our legal system.

In tort law, for example, victims are entitled to compensation for bodily injuries on their own, but not mental ones. The reason these standalone emotional harms are ineligible for recovery isn’t just that it’s harder to tell whether certain claims of depression or anxiety are genuine. Even reliably provable mental anguish doesn’t (but for narrow exceptions) qualify as the kind of harm for which victims can recover. Indeed, our tort system presumes that the harms associated with a person’s mind are less real or worthy than his bodily harms.

Yet what we think of as emotional harms tend to manifest themselves no less verifiably than physical harms do in terms of their effect on a person’s ability to engage in major life activities like her work and relationships. That certain emotional harms are trivial or fleeting doesn’t justify making them all noncompensable (on their own) for evidentiary reasons or across the board. Tort law should accordingly treat “emotional” harms no different from “physical” ones by subjecting both kinds of claims to the same burden of proof.

So what does all this tell us about the anguish suffered by MJ fans? Because French courts do not publish opinions at the trial level, it’ll take some digging to evaluate whether the witness statements and medical certificates presented as evidence in the case prove serious harm that is otherwise sufficient to qualify for tort damages. For now, check out Dualism and Doctrine up on SSRN with the benefit of critical insights by Bill of Health founder and editor Glenn Cohen. Reader comments welcome! ( dovfox at sandiego.edu)

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This entry was posted in Alex Stein, Criminal Law, Dov Fox, I. Glenn Cohen, Liability, Mental Health, Neuroscience, Scientific Evidence by Dov Fox. Bookmark the permalink.

About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.