Blindsight: How we see disabilities in tort litigation

Washington Law Review

Volumn 86, Issue 4, 2011, Pages 709-753

  Bloom, Anne ^a   Miller, Paul Steven ^b  

^a University of the Pacific McGeorge School of Law   (United States)

^b UNIVERSITY OF WASHINGTON   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84455210295     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (553)

1. Oliver Sacks, A Neurologists' Notebook, To See and Not See, THE NEW YORKER, May 10, 1993, at 59 (emphasis in original).
2. Id. at 72.
3. Id. ("Visual signals are perceived and are responded to appropriately, but nothing of this perception reaches consciousness at all.").
4. BRIAN FRIEL, MOLLY SWEENEY (1994). Molly Sweeney retells a story that was originally told by Dr. Oliver Sacks about a blind person who undergoes surgery to restore vision lost in childhood. See Carole-Ann Upton, Visions of the Sightless in Friel's Molly Sweeney and Synge's The Well of the Saints, 40.3 MODERN DRAMA 347, 347-48 (1997) (explaining the relationship between Friel's play and Sacks' true story).
5. In both versions of the story, the surgery is successful but the patient later suffers from "blindsight." FRIEL, supra.
6. Sacks, supra note 1, at 72.
7. In Friel's version of the story, however, blindsight is also a cultural condition, afflicting the people around the patient who are blind to their biases about the quality of the patient's life before surgery. Upton, supra.
8. See Upton, supra note 5, at 347-48, 357.
9. (citing Programme Note, Brian Friel, British Premiere of Molly Sweeney, at the Almeida Theatre, London, opening Oct. 27, 1994). The programme acknowledged Oliver Sacks' influence on the play.
10. See Id. (describing Friel's play and the social blindness of its seeing characters).
11. Id. Friel illustrates the differences in how disabilities are perceived and how they are experienced with competing monologues from Molly, who is blind, and from both her husband and surgeon, who are not. Before Molly undergoes surgery to restore her vision, for example, Molly's husband and doctor both express the view that she has "nothing to lose."
12. FRIEL, supra note 5, at 20.
13. (quoting the character Mr. Rice, a surgeon who eventually performs surgery on Molly to restore her vision). Friel presents Molly's perspective, however, quite differently. On the night before the surgery, her character says to the audience, "[H]ow can they know what they are taking away from me? How do they know what they are offering me? They don't. They can't. And have I anything to gain? Anything? Anything?"
14. Id. at 23.
15. (quoting the character Molly Sweeney).
16. By repeatedly juxtaposing the characters' different perspectives against each other, Friel effectively uses the play to expose and confront the audience's blindsight about the lives of people with disabilities.
17. See Upton, supra note 5, at 348.
18. (suggesting that, in Friel's account, it is society that suffers from blindness).
19. For a thoughtful discussion of some of the limitations of using disability as metaphor, see Liat Ben-Moshe, Infusing Disability in the Curriculum: The Case of Saramago's Blindness, 26 DISABILITY STUDIES QUARTERLY No. 2 (2006).
20. See, e.g., TOM SHAKESPEARE, DISABILITY RIGHTS AND WRONGS (2006).
21. See Ben-Moshe, supra note 9, at 2.
22. Another way to put it is to say that my use of medical terms and practices is intentional and strategic. By employing the "master's tools," I seek to expose both the culturally mediated character of the tools and the power dynamics that they conceal.
23. See generally Angela Onwuachi-Willig, Celebrating Critical Race Theory at 20, 94 IOWA L. REV. 1497, 1501 (2009).
24. (citing Audre Lorde, The Master's Tools Will Never Dismantle the Master's House, in SISTER OUTSIDER: ESSAYS AND SPEECHES 110, 112 (1984)).
25. (describing the technique of using the "master's tools" as a political strategy).
26. For a similar argument in the context of hedonic damages, see Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 771-72 (2007).
27. See also Sagit Mor, A Disability Critique of Torts: Preliminary Directions, presented at the Annual Meetings of the Law and Society Association, June, 2011, San Francisco, CA (on file with the author) (criticizing tort litigation's role in generating stigmatizing assumptions).
28. Perhaps because of this, it is a fairly common experience for people with physical impairments to find it difficult to identify as "disabled."
29. See EXPLORING DISABILITY: A SOCIOLOGICAL INTRODUCTION 50-62 (Colin Barnes et al. eds., 1999).
30. For an overview of the problem, see MICHAEL OLIVER, THE POLITICS OF DISABLEMENT (1990).
31. See also Simon Brisenden, Independent Living and the Medical Model of Disability (1986), reprinted in THE DISABILITY READER: SOCIAL SCIENCE PERSPECTIVES 23 (Tom Shakespeare ed., 1998).
32. For a discussion of the issue in the torts context, see Bagenstos & Schlanger, supra note 14, at 749, 752-60, 778 (arguing that hedonic damages cases present a view of disability as personal tragedy).
33. Legal actors in tort litigation encounter people with physical disabilities on a regular basis because of the role that physical harm plays in most tort claims.
34. See, e.g., John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 VA. L. REV. 1625, 1650.
35. [hereinafter Unrealized Torts] ("Traumatic bodily harm and illness are the paradigmatic forms of ultimate harm [in tort law].").
36. see also MARTHA CHAMALLAS & JENNIFER B. WRIGGINS, THE MEASURE OF INJURY: RACE, GENDER, AND TORT LAW 89 (2010).
37. (noting that negligence, the dominant theory in tort law, extends only to physical harm and property damage).
38. Because injuries involving mental disabilities raise different issues, my arguments here are restricted to plaintiffs with physical disabilities. For a discussion of some of the challenges posed by mental disabilities.
39. see Michael L. Perlin, "Where the Winds Hit Heavy on the Borderline": Mental Disability Law, Theory and Practice, "Us" and "Them," 31 LOY. L.A. L. REV. 775, 785-90 (1998).
40. (describing some of the more prevalent stereotypes about people with mental disabilities).
41. See also Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 GEO L.J. 399, 422-30 (2006).
42. (noting important differences between physical and mental disabilities in the context of hedonic loss).
43. Harry J.F. Korrell, The Liability of Mentally Disabled Tort Defendants, 19 LAW & PSYCHOL. REV. 1 (1995).
44. (noting that tort litigation treats defendants with mental disabilities differently from defendants with physical disabilities).
45. Cass R. Sunstein, Illusory Losses, 37 J. LEGAL STUD. S157, S173-S175 (2008).
46. Id. at S175-S177.
47. (summarizing the literature on affective forecasting (predicting a person's future sense of well-being) and noting that, when people without disabilities do not understand the experiences of people with disabilities, they are likely to exaggerate the effects of some losses and minimize the effects of others).
48. See discussion infra Part II; see also Bagenstos & Schlanger, supra note 14, at 784-87 (making a similar argument in the context of hedonic damages).
49. For a summary of the role of tort litigation in providing compensation of injuries.
50. see DAN B. DOBBS, THE LAW OF TORTS 17 (2000).
51. See Sacks, supra note 1, at 59.
52. Brian Friel makes a similar suggestion in his play, Molly Sweeney.
53. See Upton, supra note 5, at 351-52.
54. (describing how Friel's protagonist sees best when she becomes aware of her own limited experience). Research on affective forecasting provides empirical support for Sacks' and Upton's observation.
55. See DANIEL GILBERT, STUMBLING ON HAPPINESS 185-88 (2006).
56. (summarizing the relevant research and concluding that experience provides uniquely valuable insight into the experience of pain and suffering).
57. According to a recent American Bar Association (ABA) report, only about one in twenty lawyers report having a disability, as compared to about one in five people reporting a disability nationwide.
58. See AM. BAR ASS'N, ABA DISABILITY STATISTICS REPORT (2010), available at http://www.americanbar.org/content/dam/aba/migrated/disability/PublicDocuments/ABADisability StatisticsReport.authcheckdam.pdf.
59. What counts as "disability," however, is not always clear; the category is highly permeable in the sense that anyone can fall in or out of disability at any time.
60. See generally Elizabeth Emens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act 17 (Oct. 14, 2011) (unpublished manuscript) (on file with the author).
61. There are apparently no studies of the number of plaintiffs with physical disabilities in tort litigation. The numbers are significant enough, however, to merit serious consideration of how tort litigation portrays disabilities.
62. See, e.g., Bagenstos & Schlanger, supra note 14, at 745.
63. (analyzing hedonic damage awards to people with disabilities in tort cases).
64. John Bronsteen et al., Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516 (2008).
65. (discussing hedonic damage awards involving people with disabilities in tort cases).
66. Sunstein, supra note 19, at S173-S175.
67. (expressing concern about damage awards to people with disabilities in tort cases).
68. It is widely acknowledged that many plaintiffs with disabling injuries are in a period of transition during tort litigation, as they adjust to their new identities.
69. See, e.g., Bagenstos & Schlanger, supra note 14, at 785.
70. (describing the changes that a plaintiff with disabling changes likely goes through during and after litigation).
71. Bronsteen et al., supra note 25, at 1536-38.
72. (describing the adaptation process that tort plaintiffs go through in the period before trial).
73. See Sagit Mor, Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy, 18 YALE J.L. & HUMAN. 63, 73 (2006).
74. (arguing for more research on the role of law in the social construction of disability).
75. For an overview of the two models, see SHAKESPEARE, supra note 10, at 15-18
76. See Chris O'Brien & Christine Funk, Put Jurors on Mission for Justice, TRIAL, Apr. 2010, at 20.
77. Riki Anne Wilchins, What Does it Cost to Tell the Truth?, in THE TRANSGENDER STUDIES READER 547, 550 (Susan Stryker & Stephen Whittle eds., 2006) (paraphrasing Foucault).
78. On the significance of physical harm in tort litigation, see Anne Bloom, Zen and the Art of Tort Litigation, 44 LOY. L.A. L. REV. 11, 19 (2011).
79. See also CHAMALLAS & WRIGGINS, supra note 17, at 90.
80. describing tort law's emphasis on bodily harm).
81. Unrealized Torts, supra note 17, at 1650 (noting the importance of bodily harm in tort law).
82. DOBBS, supra note 22, at 1115.
83. see also Unrealized Torts, supra note 17, at 1626.
84. (noting how courts hearing tort cases struggle with claims that do not involve bodily harm).
85. See CHAMALLAS & WRIGGINS, supra note 17, at 90.
86. (explaining that tort law's emphasis on bodily harm stems from concerns about malingering or fraud and a belief that bodily harm is easier to verify than emotional harm).
87. For a similar argument in the context of genetic interventions, see Brigham A. Fordham, Disability and Designer Babies: Rethinking the Debate Over Genetic Interventions in Favor of Disability, 45 VAL. U. L. REV. 1473, 1499-502 (2011).
88. See, e.g., Alicia R. Ouellette, Insult to Injury: A Disability-Sensitive Response to Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions, 60 HASTINGS L. J. 397, 400 (2008).
89. (describing how the medical view of disability emphasizes treating impairments rather than alleviating the social oppression of people with disabilities).
90. TOM SHAKESPEARE ET AL., THE SEXUAL POLITICS OF DISABILITY 2 (1996).
91. See, e.g., Mark C. Weber, Disability Rights, Disability Discrimination, and Social Insurance, 25 GA. ST. U. L. REV. 575, 575 (2009).
92. ("[P]hysical or mental conditions do not disable; barriers created by the environment or by social attitudes keep persons with physical or mental differences from participating in society as equals.").
93. see also Adam M. Samaha, What Good Is the Social Model of Disability?, 74 U. CHI. L. REV. 1251 (2007).
94. SHAKESPEARE, supra note 10, at 15-18.
95. As Shakespeare notes, there are many other ways of conceptualizing disability but the medical and social models are the dominant models.
96. Id. at 15-26.
97. (describing different ways of understanding disability).
98. see also Aart C. Hendriks, Different Definition-Same Problems-One Way Out?, in DISABILITY RIGHTS LAW AND POLICY: INTERNATIONAL AND NATIONAL PERSPECTIVES 195, 202 (Mary Lou Breslin & Silvia Yee eds., 2002).
99. (describing the "minority-group model" and noting its close relationship to the social model).
100. Weber, supra note 39, at 575, 593.
101. (discussing the "civil rights model" and noting that it incorporates the "basic insight about how the social environment or attitude interacts with physical or mental traits of individuals to cause 'disability'").
102. SHAKESPEARE, supra note 10, at 15.
103. see also Fordham, supra note 34, at 1473, 1497.
104. (describing the medical model).
105. Ouellette, supra note 35, at 397, 400 (same).
106. SHAKESPEARE, supra note 10, at 18.
107. see also Brisenden, supra note 16, at 23.
108. ("On the whole, it is the organization of society, its material construction and the attitudes of individuals within it, that results in certain people being dis-abled.").
109. See Brisenden, supra note 16, at 22.
110. ("The word 'disabled' is used as a blanket term to cover a large number of people who have nothing in common with each other, except that they do not function in exactly the way as those people who are called 'normal.'").
111. see also Fordham, supra note 34, at 1502.
112. ("This social model of disability recognizes that, for most people with disabilities, discrimination is a much greater obstacle than any physical impairment.").
113. See Fordham, supra note 34, at 1502 n.185.
114. Ouellette, supra note 35, at 400.
115. Paul Steven Miller, Avoiding Genetic Genocide: Understanding Good Intentions and Eugenics in the Complex Dialogue Between the Medical and Disability Communities 20 (Dec. 10, 2008), available at papers.ssrn.com/sol3/papers.cfm?abstract_id=1202682.
116. Fordham, supra note 34, at 1498.
117. Miller, supra note 44, at 20.
118. See Miller, supra note 44, at 20.
119. see also Brisenden, supra note 16, at 23-25.
120. (explaining how social and environmental conditions play a significant role in the experience of disability).
121. One of the first such critiques came from Paul Hunt.
122. See Paul Hunt, A Critical Condition (1966), reprinted in THE DISABILITY READER: SOCIAL SCIENCE PERSPECTIVES 7, 9 (Tom Shakespeare ed., 1998).
123. At the same time, disability rights organizations also began to adopt definitions of disability that emphasized the social components of disability.
124. See, e.g., Union of the Physically Impaired Against Segregation, Fundamental Principles of Disability (Oct. 1997), available at http://www.leeds.ac.uk/disability-studies/archiveuk/UPIAS/fundamental%20principles. Pdf.
125. ("Physical disability is therefore a particular form of social oppression.").
126. see also The European Day of Disabled Persons, Report of the Human Rights Plenary Meeting, Dec. 3, 1994.
127. (defining a disabled person as "an individual. in a disabling situation, brought about by environmental, economic and social barriers.").
128. SHAKESPEARE, supra note 10, at 15.
129. see also Hunt, supra note 47, at 9.
130. (critiquing the portrayal of people with disabilities as tragic).
131. Hunt, supra note 47, at 9.
132. SHAKESPEARE, supra note 10, at 18.
133. Fordham, supra note 34, at 1502.
134. ("The social model of disability provided the basis for disability rights legislation, like the Americans with Disabilities Act of 1990, which introduced a definition of disability that, in part, recognized the social construction of disability.").
135. see also Kerry T. Cooperman, The Handicapping Effect of Judicial Opinions in Reproductive Tort Cases: Correcting the Legal Perception of Persons with Disabilities, 68 MD. L. REV. ENDNOTES 1, 1 (2008).
136. (noting that disability activists were major players in the passage of the ADA). The 2008 Amendments to the ADA emphasize the social aspects of disability even more clearly than the original law.
137. See, e.g., Kevin Barry, Toward Universalism: What the ADA Amendments Act of 2008 Can and Can't Do for Disability Rights, 31 BERKELEY J. EMP. & LAB. LAW 203, 279 (2010).
138. (stating that the Amendments' new "regarded as" prong "paves the way toward a broader conception of the social model of disability.").
139. See Mark C. Weber, Home and Community-Based Services, Olmstead, and Positive Rights: A Preliminary Discussion, 39 WAKE FOREST L. REV. 269, 278-79 (2004).
140. (describing full integration as the goal of the ADA). While some judges still operate with the mindset of the medical model, the overall trend of thinking about disability in the civil rights context moves away from the medical model.
141. Fordham, supra note 34, at 1498.
142. see also Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 BERKELEY J. EMP. & LAB. L. 91 (2000).
143. (describing problems with how the ADA has been interpreted).
144. See, e.g., Bagenstos & Schlanger, supra note 14, at 752-60.
145. (describing tort litigation's adherence to the medical model in the context of hedonic damages and the resulting problems of stereotyping and stigma).
146. Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 HARV. C.R.-C.L. L. REV. 141, 173 (2005).
147. See Fordham, supra note 34, at 1473.
148. (providing an overview of the debates).
149. see also Ouellette, supra note 35, at 398, 403-05.
150. (noting that the focus of the debate is on conditions perceived to be disabling, rather than other types of traits, like sexual orientation or race).
151. The "D" in "Deafness" is capitalized to recognize that Deafness is understood by many Deaf people to be a cultural attribute, rather than a disability.
152. See generally Edward Dolnick, Deafness as Culture, ATLANTIC MONTHLY, Sept. 1993, at 37-38.
153. See Fordham, supra note 34, at 1476 (providing an overview of the debates).
154. Kirsten Rabe Smolensky, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, 60 HASTINGS L.J. 299, 309-12, 320 (2008).
155. (arguing that parents should be liable for the selection of genetic traits associated with conditions defined as disabilities under the ADA).
156. see also id. at 319-20.
157. (arguing that "genetic traits such as deafness [sic] or achondroplasia [dwarfness] are almost certain to be considered offensive to a reasonable sense of personal dignity").
158. See Ouellette, supra note 35, at 400.
159. (explaining that arguments in favor of liability for genetic intervention rely on a medical model of disability).
160. see also Fordham, supra note 34, at 1494 n.129.
161. (making the additional point that arguments in favor of liability for genetic interventions conflate the offense of changing someone's physical attributes without their permission with the attributes themselves).
162. See, e.g., Bagenstos & Schlanger, supra note 14, at 745.
163. Bronsteen et al., supra note 25, at 516.
164. Rick Swedloff & Peter H. Huang, Tort Damages and the New Science of Happiness, 85 IND. L.J. 553 (2010).
165. Jurisdictions vary in their approach to hedonic damages. Some do not allow the claims at all.
166. see, e.g., Sullivan v. U.S. Gypsum Co., 862 F. Supp. 317 (D. Kan. 1994).
167. some permit hedonic damages to be compensated as part of a pain and suffering award.
168. see, e.g., Banks v. Sunrise Hosp., 102 P.3d 52, 64 (Nev. 2004).
169. others recognize hedonic damages as a separate category of recovery-sometimes called "disability" damages.
170. see, e.g., Knight v. Lord, 648 N.E.2d 617, 623 (Ill. App. Ct. 1995).
171. Still others make recovery contingent on the plaintiff having some cognitive awareness of the loss, whether it is considered as part of an award for loss of enjoyment of life.
172. see, e.g., McDougald v. Garber, 73 N.Y.2d 246, 255 (1989).
173. or compensable as a separate award. For an overview of this somewhat jumbled area of law.
174. see David Polin, Damages for Loss of Enjoyment of Life, in 49 AM. JUR. 3D Proof of Facts 339 (1998).
175. Bagenstos & Schlanger, supra note 14, at 748-49.
176. Id. at 749.
177. See Hensel, supra note 54, at 160.
178. (noting that the number of wrongful birth and wrongful life claims seems to be diminishing, perhaps because of the expansion of abortion rights and improved prenatal testing).
179. See Ouellette, supra note 35, at 398 n.4.
180. (noting that the technology to permit genetic interventions does not yet exist).
181. see also Fordham, supra n. 34, at 1480.
182. (explaining that there are very few reported cases of parents selecting embryos with traits associated with disability).
183. See, e.g., Sullivan, 862 F. Supp. 317.
184. Carroll v. United States, 295 Fed. Appx. 382 (2d Cir. 2008) (applying New York law).
185. See, e.g., Mor, supra note 14.
186. (criticizing tort litigation's approach to disabilities).
187. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 189 (5th ed. 1984).
188. Bronsteen et al., supra note 25, at 1538.
189. (noting that references to making the plaintiff "whole" are part of the "typical parlance" of tort cases).
190. see also John C.P. Goldberg, Who Feels Their Pain? The Challenge of Noneconomic Damages in Civil Litigation, 55 DEPAUL L. REV. 435, 435-36 (2006).
191. KEETON ET AL., supra note 68, at 89.
192. see also Anne Bloom, To Be Real: Sexual Identity Politics in Tort Litigation, 88 N.C. L. REV. 357, 410-13 (2010).
193. (describing the heavy reliance on medical experts in tort litigation).
194. See Bloom, supra note 31, at 19.
195. (describing tort litigation's emphasis on the body and the role of medical experts in evaluating bodily harm).
196. See Unrealized Torts, supra note 17, at 1626.
197. (noting that courts struggle with tort claims that do not involve bodily harm).
198. This is true even with tort claims for emotional distress, which typically require that the plaintiff show some sort of bodily manifestation of harm.
199. See Dobbs, supra note 22, at 1115.
200. The one exception is defamation law.
201. See id. at 1117.
202. KEETON ET AL., supra note 68, at 189.
203. see also Richard Goodman, Expert Medical Testimony: A Physician's Advice to Counsel, N.J. LAW. MAG., Aug. 2004 (describing the role of doctors in providing expert testimony).
204. Goodman, supra note 73, at 25.
205. See id. ("Particularly in personal injury and in medical malpractice cases, the presence of a physician or doctor as an expert witness is common during the pre-trial investigative stage of a case, as well as during the presentation of the case itself in a courtroom.").
206. David L. Merideth, The Medical Expert Witness in Mississippi: Outgunning the Opposition, 64 MISS. L.J. 85, 85.
207. (noting that attorneys commonly hire medical experts in medical malpractice cases, personal injury suits, and workers' compensation claims and also noting that the use of and role of medical experts is expanding).
208. The case is featured in a best-selling book. ADAM PENENBERG, TRAGIC INDIFFERENCE: ONE MAN'S BATTLE WITH THE AUTO INDUSTRY OVER THE DANGER OF SUVS 14-20 (2003) (describing the facts of the case).
209. Id. at 110-13 (describing Bailey's injuries).
210. see also id. at 235.
211. (describing the filing of the complaint in the Bailey case and the defendants' response).
212. Id. at 233-34.
213. Id. at 263-72.
214. (describing the theory of driver error).
215. See also id. at 270.
216. (summarizing defense counsels' questioning of a key rescuer during her deposition).
217. As in other "rollover" litigation involving the design of the Ford Explorer and Firestone's tires, the main issues in the Bailey case concerned the design of the defendants' products.
218. See id. at 21-48, 70-83.
219. (describing the strategy of plaintiffs' counsel in Ford "rollover" cases).
220. id. at 123-36 (describing the defendants' response to the litigation).
221. The only scenario under which the condition of Bailey's body was even marginally relevant to the main legal issues in the case was the defense's suggestion that Bailey's paralysis may have been caused by a rescuer's failure to secure Bailey's neck during the rescue.
222. Id. at 270.
223. For purposes of raising this defense, the condition of Bailey's body immediately after the accident (and before she was transported) might have been relevant for purposes of determining whether she was already paralyzed when she was moved. Id. Bailey's current medical condition, however, would not have been important even for this theory of the case, once the fact of her injuries was established.
224. See Bronsteen et al., supra note 25, at 1545.
225. (noting that once the nature of the plaintiff's injuries are known, the plaintiff's health is of little importance in tort litigation).
226. PENENBERG, supra note 76, at 249.
227. Id. This interaction between Bailey and her lawyer reveals how a lawyer's biases about the experience of disability can color the course of the litigation from the very start. From the moment he met her, Bailey's attorney perceived her disabilities as a "tragedy." Had he perceived her differently, he might have approached the litigation in a different way. For example, instead of making Bailey the "focal point" of the litigation, the lawyer might have focused on corporate executives at Ford and Firestone to provide a "human face" for the issues at stake. See discussion infra Part III.
228. On the role of medical experts in personal injury litigation, see Robert Sullivan & Bob Langdon, Developing Memorable Expert Testimony, TRIAL, Oct. 2008, at 44-45.
229. (describing the role of experts in personal injury cases). For a discussion of the role that they played in Bailey's case.
230. see PENENBERG, supra note 76, at 262.
231. (quoting medical expert testifying that Bailey would need constant assistance and supervision for the rest of her life and estimating the costs of that treatment).
232. PENENBERG, supra note 76, at 281.
233. See, e.g., Michael Winerip, Ford and Firestone Settle Suit Over Explorer Crash, N.Y. TIMES, Jan. 9, 2001, at C1.
234. (discussing the Bailey settlement but only mentioning the legal issues in the case in the last sentence, and then only in a cursory way).
235. see also PENENBERG, supra note 76, at 137-42.
236. (describing a reporter's persistent attempts to interview Bailey's attorney about the safety issues in the case).
237. See Bagenstos & Schlanger, supra note 14, at 752-55.
238. (providing examples of how plaintiffs' lawyers seek to arouse jurors' pity).
239. Bronsteen et al., supra note 25, at 1535 n.106.
240. ("[T]he trial process requires that the plaintiff perform her disability in front of the jury.").
241. see also Bagenstos & Schlanger, supra note 14, at 754.
242. (noting that some practice manuals advise plaintiff's lawyers to have the plaintiff not attend trial if there is some risk that the plaintiff will appear to be coping better than the jury might imagine).
243. See, e.g., JOHN C. SHEA, TRIAL THEMES FOR THE INJURED PLAINTIFF 15-17, available at http://www.marksandharrison.com/pdf/Trial%20Themes.pdf (last visited Nov. 15, 2011).
244. See generally Philip H. Corboy & Susan J. Schwartz, Pain and Suffering and Non-Economic Damages, in ATLA's Litigation of Tort Claims Section 24, at 13.
245. (Roxanne Barton Conlin & Gregory S. Cusimano eds., 2003).
246. (suggesting an approach that emphasizes testimony from medical experts on the plaintiff's limitations).
247. See SHEA, supra note 88, at 14-17.
248. Other suggested themes also resonate with the medical model; for example, "This case is about a terrible tragedy."
249. Id. at 15.
250. see also Gary Gober, Closing Argument: The Lawyers' Crowning Achievement, TRIAL, Apr. 1998, at 70.
251. (recommending arguments that emphasize the plaintiff's physical limitations).
252. See Corboy & Schwartz, supra note 88, at 13.
253. (noting that medical experts will testify to the plaintiff's physical limitations).
254. See Bloom, supra note 31, at 22.
255. see also Richard Goodman, Expert Medical Testimony: A Physicians Advice to Counsel, 229 N.J. LAW. 25 (2004).
256. (describing the role of the medical expert in helping juries to reach fair and reasonable verdicts).
257. CHAMALLAS & WRIGGINS, supra note 17, at 127.
258. (making a similar argument with respect to judges and jurors).
259. Id. (noting how expert opinions are shaped by a "normality" bias).
260. see also Carol J. Gill, Health Professionals, Disability, and Assisted Suicide: An Examination of Relevant Empirical Evidence and Reply to Batavia, 6 PSYCH. PUB. POL. & L. 526, 530 (2000) (describing the disability biases of medical experts).
261. CHAMALLAS & WRIGGINS, supra note 17, at 127.
262. See Upton, supra note 5.
263. (describing the broader significance of blindsight in Friel's Molly Sweeney).
264. Hensel, supra note 54, at 185.
265. (arguing that experts and jurors are "conditioned" to the medical model's view of disability and are "unlikely to have insight into the potential richness" of the lives of people with disabilities).
266. Gill, supra note 93, at 530.
267. ("[H]ealth professionals significantly underestimate the quality of life of persons with disabilities.").
268. see also T. Benjamin Singer, From the Medical Gaze to Sublime Mutations: The Ethics of (Re)Viewing Non-normative Body Images, in THE TRANSGENDER STUDIES READER 607 (Susan Stryker & Stephen Whittle eds., 2006).
269. ("Ways of seeing are deeply embedded in culture, and images by themselves are hard-pressed to alter their conditions of visual reception. Visual perception of non-normative bodies, in particular, have been shaped through countless structured acts of viewing in contexts that range from talk show spectacles to case studies of medical pathology.")
270. Robin Mackenzie, Somatechnics of Medico-Legal Taxonomies: Elective Amputation and Transableism, 16 MED. L. REV. 390, 390 (2008).
271. See, e.g., Bloom, supra note 70, at 361-62.
272. (describing the shifting meanings of "normal" and "natural" in tort litigation).
273. see also Fordham, supra note 34, at 1494 n.129, 1515.
274. (noting that experts and others sometimes equate "unusual" with "abnormal").
275. See, e.g., Bloom, supra note 70, at 361-62.
276. Mackenzie, supra note 98, at 391.
277. Bronsteen et al., supra note 25, at 1545.
278. see also Hensel, supra note 54, at 175.
279. (describing the role of courts in diagnosing physical abnormalities in wrongful birth and wrongful death cases and noting that something similar occurs in all tort cases).
280. see also Mackenzie, supra note 98, at 390.
281. (on the role of medical experts in normalizing bodily differences).
282. This is the essence of "make-whole" relief in the context of personal injury law.
283. See John C.P. Goldberg, supra note 69, at 435-36 (2006).
284. Mackenzie, supra note 98, at 390.
285. Hensel, supra note 54, at 185.
286. See Brisenden, supra note 16, at 23.
287. (discussing the "mythologized physical norm" and its "impossible demands").
288. Mackenzie, supra note 98, at 391.
289. MARC A. FRANKLIN ET AL., TORT LAW AND ALTERNATIVES: CASES AND MATERIALS 710 (9th ed. 2011).
290. Goldberg, supra note 103, at 435.
291. ("The point of tort damages is to compensate, to restore the status quo ante, to make the plaintiff whole.").
292. see also Fowler V. Harper et al., THE LAW OF TORTS §25.1, at 490, 492 (2d ed. 1986).
293. (noting that the role of tort compensation is to make the plaintiff as whole as possible with an award of money).
294. See Douglas Laycock, MODERN AMERICAN REMEDIES 15-16 (3d ed. 2002).
295. (describing the notion of returning plaintiff to the position she "would have been in but for the wrong" as the "essence of compensatory damages").
296. Hunt, supra note 47, at 9.
297. ("[E]ven the most severely disabled people retain an ineradicable conviction that they are still fully human in all that is ultimately necessary.").
298. Goldberg, supra note 69, at 436.
299. Richard L. Hasen, EXAMPLES AND EXPLANATIONS: REMEDIES 60 (2d ed. 2010).
300. Id. at 100.
301. Goldberg, supra note 69, at 436.
302. FRANKLIN ET AL., supra note 107, at 14.
303. Fordham, supra note 34, at 1517.
304. One of the problems with tort litigation's backward-looking approach is this equation of injury with "loss." From a disability rights perspective, disabling injuries involve physical changes but not necessarily bodily "losses."
305. Mackenzie, supra note 98, at 391.
306. In fact, some with bodies designated as "normal" seek bodily changes that would result in their bodies being re-designated as "abnormal." Id. (discussing elective amputees).
307. M. Grodin & H. Lane, Ethical Issues in Cochlear Implant Surgery: An Exploration into Disease, Disability and the Best Interests of the Child, 7 KENNEDY INST. OF ETHICS J. 231 (1997).
308. Paul Steven Miller, Toward Truly Informed Decisions about Appearance-Normalizing Surgeries, in SURGICALLY SHAPING CHILDREN: TECHNOLOGY, ETHICS, AND THE PURSUIT OF NORMALITY 211, 211 (Erik Parens ed., 2006).
309. GILBERT, supra note 23, at 165-88.
310. (providing examples of people who describe themselves as "better off" after a serious injury). To give an extreme example, what if a defendant accidentally maims a person who has long been seeking to become an elective amputee? In such a case, the plaintiff may feel more "whole" as a result of the defendant's conduct than she did before the accident. Yet under tort law's "make the plaintiff whole" approach, the plaintiff would need to present herself disingenuously as "less than whole" as a condition for relief.
311. See Bloom, supra note 31, at 21 (discussing elective amputees).
312. See Bagenstos & Schlanger, supra note 14, at 775.
313. Indeed, it is notable that people with paralyzing injuries are particularly likely to return to high rates of happiness.
314. Bronsteen et al., supra note 25, at 1541.
315. See Bagenstos & Schlanger, supra note 14, at 775.
316. Bronsteen et al., supra note 25, at 1541.
317. See, e.g., Eyewitness News (KENS5 San Antonio broadcast Aug. 9, 2001) (showing images of Bailey in her hospital room) (on file with the author).
318. Sara Nathan & Guillermo X. Garcia, Woman Settles with Ford, Firestone, USA TODAY, Jan. 9, 2001 (showing a photograph of Bailey in her hospital bed).
319. See Alejandro Bodipo-Memba, Ford Replacement Plan to End; Texas Woman Copes With Paralysis (Mar. 29, 2002), available at http://sci.rutgers.edu/forum/showthread.php?t=29306.
320. (describing Bailey as upbeat about her future and active with an outdoor counseling group for troubled youth).
321. The reference is to the quote with which this Part began: "What kind of system bids us each make of our bodies a problem to be solved, a claim we must defend, or a secret we must publicly confess, again and again?".
322. Wilchins, supra note 30, at 550 (paraphrasing Foucault).
323. See Sally Engle Merry, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING CLASS AMERICANS 9 (1990) (discussing how law shapes what we think about the world).
324. see also Murray Edelman, POLITICS AS SYMBOLIC ACTION: MASS AROUSAL AND QUIESCENCE 101 (1971) (noting that governmental actors are "powerful shapers of perceptions").
325. Stuart A. Scheingold, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE 135 (1974).
326. (citing EDELMAN, supra, and making a similar point in the context of courts).
327. see generally Marc Galanter, The Radiating Effects of Courts, in EMPIRICAL THEORIES ABOUT COURTS 117, 118 (Keith Boyum & Lynn Mather eds., 1983).
328. (describing the outward "flow of influence" from the courts); 132.
329. See, e.g., William Forbath, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT 135 (1991).
330. (arguing that legal rulings deeply affected the ideology and strategies of the American labor movement).
331. Michael W. Mccann, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION 58 (1994) (describing how legal rulings inform political activists).
332. Sherilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 WASH. & LEE L. REV. 405, 444-45 (2000).
333. (noting that judges may be even more susceptible than jurors to narratives and stereotypes).
334. See, e.g., Sara Nathan & Guillermo X. Garcia, Woman Settles with Ford, Firestone, USA TODAY, Jan. 9, 2001 (showing a photograph of Bailey in her hospital bed).
335. see also Eyewitness News, supra note 128 (showing images of Bailey in her hospital room).
336. See e.g., Eyewitness News, supra note 128.
337. Bodipo-Memba, supra note 129.
338. see also Bronsteen et al., supra note 25, at 1526-31.
339. (summarizing the literature on adjustment and adaptation).
340. Peter A. Ubel et al., Mismanaging the Unimaginable: The Disability Paradox and Health Care Decision Making, 24 HEALTH PSYCHOL. S57, S58 (2005).
341. (describing how most people with disabilities and chronic illness adjust to their conditions and go on to lead happy lives).
342. Bodipo-Memba, supra note 129.
343. Only one article appears to have followed up on what happened to Donna Bailey after the litigation.
344. See id. One reporter, however, wrote a best-selling book on the litigation, which was published well after the litigation ended.
345. See PENENBERG, supra note 76.
346. The book's title-Tragic Indifference-suggests the overall theme.
347. For an overview of the problem, see William Haltom & Michael Mccann, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS (2004).
348. See id. at 20.
349. (identifying the various institutional constraints, including the "sheer length, complexity, and uncertainty of legal proceedings," that compromise the quality of the media coverage).
350. See, e.g., Michael McCann, William Haltom & Anne Bloom, Java Jive: Genealogy of a Juridical Icon, 56 U. MIAMI L. REV. 113, 159-67, 172 (2001).
351. (describing the persistence of a distorted media portrayal of the McDonald's coffee case, despite the efforts of the plaintiff's attorney to correct the distortion).
352. 227 A.2d 689 (N.J. 1967).
353. Id. at 692.
354. Id. at 692-93.
355. see also Hensel, supra note 54, at 154-62.
356. (discussing how courts tend to ignore the benefits of having children with disabilities in wrongful birth claims).
357. Hensel, supra note 54, at 154-62.
358. Id.; see also Nicollete Priaulx, THE HARM PARADOX: TORT LAW AND THE UNWANTED CHILD IN AN ERA OF CHOICE 54 (Sheila McLean ed., 2007).
359. See Bagenstos & Schlanger, supra note 14, at 752-60.
360. (providing examples of the stigmatizing portrayal of disabilities by judges and lawyers in cases involving hedonic damages).
361. Id. at 778.
362. See id. at 753.
363. (providing examples of how plaintiffs' attorneys present hedonic damage claims).
364. see also id. at 755-56.
365. (providing examples of how courts present the claims).
366. Id. at 752-53.
367. See, e.g., id. at 755-56.
368. Hensel, supra note 54, at 173.
369. See discussion supra notes 83-84 and accompanying text.
370. See, e.g., SHEA, supra note 88, at 15-17.
371. (recommending comparing the plaintiff's life to that of a "prisoner").
372. Sagit Mor makes a similar argument in a forthcoming work on disability and torts.
373. See Mor, supra note 14.
374. (discussing tort litigation's role in generating stigmatizing assumptions).
375. See HALTOM & MCCANN, supra note 139, at 177.
376. (explaining how media coverage "seeps into readers' consciousness subtly and steadily"). There is perhaps no better example of this than the McDonald's coffee case, which entered the cultural consciousness in an extraordinary way and convinced many Americans of the need for tort reform.
377. See McCann et al., supra note 141.
378. Miller, supra note 122, at 221.
379. Hensel, supra note 54, at 174.
380. As Bagenstos and Schlanger note, "if nothing else, the drive to avoid cognitive dissonance" may lead plaintiffs to come to believe their own testimony.
381. Bagenstos & Schlanger, supra note 14, at 785.
382. see also Laura L. Rovner, Perpetuating Stigma: Client Identity in Disability Rights Litigation, 2001 UTAH L. REV. 247, 253 (2001).
383. (making a similar argument in the civil rights context).
384. Hensel, supra note 54, at 172 n.173.
385. Fordham, supra note 34, at 1525-26.
386. see also Ouellette, supra note 35, at 400.
387. Bagenstos & Schlanger, supra note 14, at 785.
388. Hensel, supra note 54, at 172 n.171.
389. Bronsteen et al., supra note 25, at 1526-31.
390. (summarizing the literature on adjustment for people who become disabled).
391. See Rovner, supra note 160, at 312-13.
392. (making a similar argument in the context of civil rights claims).
393. see also Ellen S. Pryor, Noneconomic Damages, Suffering, and the Role of the Plaintiff's Lawyer, 55 DEPAUL L. REV. 563, 565 (2006).
394. (arguing that plaintiff's lawyers influence their client's experience of suffering).
395. Bagenstos & Schlanger, supra note 14, at 785.
396. ("[B]y focusing on the negative feelings that occur during [the period of injury], plaintiffs with disabilities may delay or derail their ultimate ability to adapt to their new condition.").
397. Bronsteen et al., supra note 26, at 1537.
398. (arguing that litigation may cause plaintiffs to overestimate the extent of their injuries).
399. see also Edward B. Blanchard & Edward J. Hickling, AFTER THE CRASH: ASSESSMENT AND TREATMENT OF MOTOR VEHICLE ACCIDENT SURVIVORS 171-86 (1997).
400. (summarizing research on whether tort litigation prolongs or exacerbates suffering).
401. See Bronsteen et al., supra note 25, at 1545.
402. (making similar arguments in the context of a trial). Professors Bronsteen, Buccafusco, and Masur argue for delaying tort claims to allow plaintiffs time to adjust.
403. Id. at 1548-49.
404. Because there are numerous drawbacks associated with delaying tort litigation (including the risk of losing key evidence) and because the plaintiffs will still be exposed to the harmful messages at a later date, I believe it makes more sense to incorporate procedures that will minimize exposure to harmful stereotypes and facilitate plaintiffs' adjustment without delaying their day in court.
405. See discussion infra notes 231-241
406. and accompanying text; see also Ronen Perry, Empowerment and Tort Law, 76 TENN. L. REV. 959, 986-87 (2009).
407. (describing the psychological risks posed to the plaintiff by delaying trial).
408. Rovner, supra note 160, at 289.
409. Id. at 291.
410. My arguments here were influenced by Anthony Alfieri's important critique of the practices of poverty lawyers.
411. See generally Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107 (1991).
412. As Karl Llewellyn noted long ago, "[C]ategories and concepts, once formulated and once they have entered into thought processes, tend to take on an appearance of solidity, reality and inherent value which has no foundation in experience."
413. Karl N. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 COLUM. L. REV. 431, 453 (1930).
414. see also Devon Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1288-89 (2000).
415. (describing how identity performances can transform the performer's sense of self).
416. See Alfieri, supra note 172, at 2125-26.
417. (describing the role of interpretive violence in poverty law practice).
418. see also Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601-05 (1986).
419. (arguing that legal interpretations are a form of social violence because as legal actors embrace one normative world, they destroy another).
420. See discussion supra Part I.
421. See Hensel, supra note 54, at 185-86.
422. (describing the biases of legal actors about disability).
423. discussion supra notes 93-106 and accompanying text (describing the cognitive biases of experts).
424. See generally David Engel, Lumping as Default in Tort Cases: The Cultural Interpretation of Injury, 44 LOY. L.A. L. REV. 35, 52-54 (2011).
425. (describing how cultural understandings of injury influence the perceptions of both legal and non-legal actors).
426. Engel, supra note 176, at 52-54, 64-65.
427. (describing the role of perceptions in influencing, and being influenced by, legal discourse).
428. Some may also gain greater cognitive experience through their own personal experience with disability. For most of us, living without disability is a temporary state.
429. See Rovner, supra note 160, at 312-13.
430. Bagenstos & Schlanger, supra note 14, at 754-55.
431. Rovner, supra note 160, at 312-13.
432. See, e.g., Kathryn Abrams, Hearing the Call of Stories, 79 CALIF. L. REV. 971, 973-74, 1051 (1991).
433. (emphasizing the importance of having our stories heard).
434. Tom R. Tyler, What is Procedural Justice?: Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 LAW & SOC'Y REV. 103, 105 (1988).
435. (presenting evidence that involvement in the decision-making process enhances the participants' perception of fairness).
436. See GILBERT, supra note 23, at 114-16.
437. (explaining how people with previous experience with an injury typically provide the best information about the likely future to others with similar injuries).
438. See, e.g., Bronsteen et al., supra note 25, at 1545.
439. (describing the period of adjustment).
440. GILBERT, supra note 23, at 251.
441. Mackenzie, supra note 98, at 397.
442. On the potentially therapeutic role of law, see generally Bruce J. Winick, THERAPEUTIC JURISPRUDENCE APPLIED: ESSAYS ON MENTAL HEALTH LAW (1977).
443. Paul Steven Miller, The Impact of Assisted Suicide on Persons with Disabilities-Is It a Right Without Freedom?, 9 ISSUES L. MED. 47, 58 (1993) (discussing State v. McAfee, 385 S.E.2d 651 (Ga. 1989)).
444. See, e.g., Thomas A. Moore, EVIDENCE IN NEGLIGENCE CASES, at 3-27 to 3-29 (10th ed. 2010) (noting that trial courts should give attorneys wide latitude in the selection and presentation of testimony from witnesses).
445. See, e.g., United States v. Schneider, 111 F.3d. 197, 202 (1st Cir. 1997).
446. United States v. Robinson, 560 F.2d 507, 519 (2d Cir. 1988).
447. see also FED. R. EVID. 401.
448. (defining relevance as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
449. See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95 (1993).
450. The use of third party experiential experts is also not unprecedented. In civil rights cases, third party experiential testimony has been used to help the court understand how individuals experience differential treatment. For example, in the recent California case on the constitutionality of a local proposition prohibiting gay marriage, the court heard third party experiential testimony on the experience of being gay.
451. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 938-40 (N.D. Cal. 2010).
452. (describing the testimony of lay witnesses in the case, including testimony from non-parties on their experiences with discrimination). This testimony was offered in addition to testimony from expert witnesses, so as to provide the court with more information about the effects of the proposition on their lives.
453. Id. at 932-38.
454. See FED. R. EVID. 403 (providing for the exclusion of evidence that poses a danger of unfair prejudice).
455. See Peter Nicolas, "They Say He's Gay": The Admissibility of Evidence of Sexual Orientation, 37 GA. L. REV. 793, 798 (2003).
456. (noting that all evidence is usually, at some level, "prejudicial" to the party against whom it is admitted).
457. Under the rules of evidence, courts typically weigh the benefits of the evidence against any potential prejudice in deciding whether the evidence should be admitted.
458. See Jack B. Weinstein & Margaret A. Berger, WEINSTEIN'S FEDERAL EVIDENCE § 403.02[1][a] (Joseph M. McLaughlin ed., 2d ed. 2011).
459. See discussion supra notes 53-58, 107-110 and accompanying text.
460. See discussion supra notes 53-58 and accompanying text.
461. See Martha Chamallas, Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss, 38 LOY. L.A. L. REV. 1435, 1436 (2005).
462. (making an argument for better linkages between tort law and rights claims, in the context of race and gender).
463. See David M. Engel, The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community, in LAW AND COMMUNITY IN THREE AMERICAN TOWNS 27, 33, 50 (Carol J. Greenhouse et al. eds., 1994).
464. (describing findings that Americans tend to emphasize self-sufficiency over rights in personal injury litigation).
465. See generally id. at 33.
466. See discussion supra notes 158-164 and accompanying text.
467. (describing the narrative demands that tort litigation makes on injured plaintiffs).
468. Fordham, supra note 34, at 1494 n.129.
469. Nemmers v. United States, 681 F. Supp. 567, 575 (C.D. Ill. 1988) (emphasis in original).
470. See Jason M. Solomon, Equal Accountability Through Tort Law, 103 NW. U. L. REV. 1765, 1775-79 (2009).
471. (summarizing scholarship supporting the view that a notion of accountability is more consistent with the structure of tort law than "make-whole" relief).
472. Benjamin C. Zipursky, Rights, Civil Recourse, Not Corrective Justice, 91 GEO. L. J. 695, 697-98 (2003).
473. [hereinafter Zipursky, Civil Recourse] (suggesting that rights-based models are more consistent with the structure of tort law than corrective justice or "make-whole" models).
474. Zipursky, Civil Recourse, supra note 207, at 697-98.
475. Thus, a court might consider "makewhole" relief in the form of a remedy but it would follow the court's recognizing the legal wrong and not be incorporated into the narratives accompanying the substantive tort claim.
476. Id. at 697-98.
477. See John Solomon, supra note 207, at 1775.
478. Benjamin C. Zipursky, Wrongs and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 6 (1998) [hereinafter Zipursky, Wrongs and Recourse].
479. Solomon, supra note 207, at 1796.
480. Id. at 1778, 1796, 1807.
481. Id. at 1797.
482. see also Perry, supra note 169, at 966.
483. (noting the role of tort litigation in conveying a "clear message of social dissatisfaction").
484. See, e.g., Fordham, supra note 34, at 1503.
485. (noting that the disability rights community values self determination and community over self sufficiency and independence).
486. Rovner, supra note 160, at 292.
487. see also Perry, supra note 169, at 984.
488. (describing how attorneys strategically victimize their clients).
489. Rovner, supra note 160, at 287.
490. O'Brien & Funk, supra note 29, at 20.
491. This would also seemingly be an easy transition to make because many trial lawyers already rely on themes of accountability in their cases.
492. SHEA, supra note 88, at 17.
493. (suggesting numerous "accountability themes," including "[t]his is a case about fairness" and "[h]e who does not open his eyes must open his purse.").
494. Swedloff & Huang, supra note 60, at 577-78.
495. (describing the difference between economic losses, including medical costs, and non-economic losses).
496. See discussion supra notes 119-129 and accompanying text.
497. (arguing that medical damages can be presented in alternative ways without posing a risk to recovery).
498. For an overview of the differences between "economic" and "non-economic" or "general" damages.
499. see HASEN, supra note 112, at 37.
500. Perry, supra note 169, at 984.
501. Bagenstos & Schlanger, supra note 14, at 751.
502. Id. But see Swedloff & Huang, supra note 60, at 580-83.
503. (arguing that, while courts use the language of "loss of enjoyment of life," hedonic damage awards typically compensate for loss of capacity).
504. Bagenstos & Schlanger, supra note 14, at 797.
505. See Swedloff & Huang, supra note 60, at 585.
506. (discussing the valuation of hedonic damages immediately after a plaintiff's injury).
507. See, e.g., Hendrix v. Stepanek, 771 N.E.2d 559, 569 (Ill. App. Ct. 2002).
508. (upholding an award for hedonic damages compensating the plaintiff for the loss of certain activities in her life).
509. See discussion supra notes 112-120 and accompanying text.
510. (describing the problems with a backward looking analysis that focuses on restoring the plaintiff to a prior state).
511. See Swedloff & Huang, supra note 60, at 585.
512. (distinguishing between pre-adaptation and post-adaptation losses).
513. See, e.g., Poche v. Allstate Ins. Co., 04-CA-1058 (La. App. 5 Cir. 3/1/05).
514. 900 So. 2d 55 (upholding a jury's award of hedonic damages for the period of thirteen months that the plaintiff spent in medical treatment because during this time she could not participate fully in activities that she previously enjoyed).
515. Bagenstos & Schlanger, supra note 14, at 797.
516. See, e.g., Varnell v. La. Tech Univ., 709 So. 2d 890.
517. (La. Ct. App. 1998) (awarding hedonic damages on the ground that the plaintiff did not have "much of a future").
518. See Bagenstos & Schlanger, supra note 14, at 755-56.
519. See Swedloff & Huang, supra note 60, at 581-83, 587.
520. See generally Fordham, supra note 34, at 1512-21.
521. See generally id. at 1519-20.
522. See generally id. at 1518.
523. (noting research indicating that some people with severe physical disabilities report greater life satisfaction than people without disabling conditions).
524. See discussion supra notes 112-115 and accompanying text.
525. (explaining the difference between forward looking relief and backward looking relief, in the context of damages).
526. Some defendants may attempt to argue that they should not be liable for damages stemming from social prejudice on the ground their conduct was not the proximate cause of any social exclusion. Because social exclusion is an entirely foreseeable result of conduct that leads to a disabling injury, however, these arguments should fail.
527. See generally Dobbs, supra note 22, at 443-45.
528. (providing an overview on the principles of proximate cause).
529. Bagenstos and Schlanger make a similar argument in the context of economic damages.
530. See Bagenstos & Schlanger, supra note 14, at 791.
531. My argument here is for the recovery of the noneconomic aspects of these future injuries. With the inclusion of testimony from third-party experiential experts, both types of compensation-for economic and non-economic costs of social harm-will flow more naturally in tort litigation. The downside of this approach is that the consideration of future social harm might prompt the jury to blame someone other than the defendant for plaintiffs' injuries. With proper jury instructions, however, the risks can be minimized and plaintiffs should be able to recover compensation for the future injuries of social discrimination.
532. See generally RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 1 (2000).
533. see also James Steven Rogers, Restitution for Wrongs and the Restatement (Third) of the Law of Restitution and Unjust Enrichment, 42 WAKE FOREST L. REV. 55, 57 (2007).
534. See Rogers, supra note 242, at 57.
535. Andrew Kull, Rationalizing Restitution, 83 CALIF. L. REV. 1191, 1224 (1995).
536. See, e.g., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798, 800-01 (S.D.N.Y. 1981).
537. (ordering George Harrison to disgorge twenty-five percent of the profits from the hit My Sweet Lord to the plaintiff).
538. Olwell v. Nye & Nissen Co., 26 Wash. 2d 282, 287, 173 P.2d 652, 654 (1947).
539. (ordering defendant to compensate the plaintiff for the amount of labor costs saved by the defendant after using plaintiff's egg washing machine without the plaintiff's permission).
540. See Hunt, supra note 47, at 9.
541. (describing the disabling of others as possibly motivated by a "need to safeguard" the "security" of those without disabling conditions).
542. see also Jerome McCristal Culp, Jr., To the Bone: Race and White Privilege, 83 MINN. L. REV. 1637, 1638-40 (1999) (making a similar argument in the race context).
543. For similar arguments in the civil rights context, see Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2413-14 (1989).
544. Richard Delgado, When a Story is Just a Story: Does Voice Really Matter?, 76 VA. L. REV. 95, 95-96 (1990) [hereinafter Delgado, When a Story is Just a Story].
545. Delgado, When a Story is Just a Story, supra note 247, at 95-96.
546. see also Elizabeth Emens, Shape Stops Story, NARRATIVE, 2007, at 130-31.
547. (asserting that storytelling can contribute to client empowerment but also arguing that sometimes lawyers should protect their clients' right not to tell a story).
548. See, e.g., Gerry Spence, GIVE ME LIBERTY!: FREEING OURSELVES IN THE TWENTY-FIRST CENTURY 304-05 (1998).
549. (describing the methods taught at Spence's trial lawyer college, including how to "crawl into the hides" of clients, "experience their pain," and understand their witness).
550. see also Dana K. Cole, Psychodrama and the Training of Trial Lawyers: Finding the Story, 21 N. ILL. U. L. REV. 1, 22 (2001).
551. (describing Spence's techniques, which encourage intense client identification).
552. Cole, supra note 249, at 22.
553. see also Binny Miller, Give Them Back Their Lives: Recognizing Client Narrative in Case Theory, 93 MICH. L. REV. 485, 564-65 (1994).