Volume 6
Summer 2012
Number 4
Student Works Edition
Articles
“Seller Beware!”: Making Necessary Revisions to the
South Carolina Seller Disclosure Statement and South
Carolina Residential Property Condition Disclosure Act
Josh Crowfoot
Protecting the Silent Third Party: The Need for
Legislative Reform With Respect to Informed Consent
and Research on Human Biological Materials
Catherine K. Dunn
Using Daubert Principles to Determine if Other Incidents
Are Substantially Similar in Design Defect Cases
Twombly, Iqbal, and the Rise of Fraudulent Joinder
Litigation
The Public Debt Clause Debate: Who Controls This Lost
Section of the Fourteenth Amendment?
A Constitutional Ringtone: Cell Phones and the
Search Incident to Lawful Arrest Warrant Exception
Post Gant
M. Michelle Jones
Kevin L. Pratt
Daniel Strickland
Cassie M. Weathersbee
“SELLER BEWARE!”: MAKING NECESSARY
REVISIONS TO THE SOUTH CAROLINA
SELLER DISCLOSURE STATEMENT AND
SOUTH CAROLINA RESIDENTIAL PROPERTY
CONDITION DISCLOSURE ACT
Josh Crowfoot*
I.
II.
III.
INTRODUCTION .............................................................. 600
HISTORY BEHIND SELLER DISCLOSURE
STATEMENTS .................................................................. 602
A. Demise of Caveat Emptor ........................................... 602
B. Remedies Available Under the Common Law in
South Carolina for Failure to Disclose Defects in
Real Property .............................................................. 604
C. Advent of Seller Disclosure Statutes .......................... 606
D. Typical Seller Disclosure Statement .......................... 608
THE SOUTH CAROLINA SELLER DISCLOSURE
STATEMENT DOES NOT AGREE WITH THE
LANGUAGE OF THE SOUTH CAROLINA
RESIDENTIAL PROPERTY CONDITION
DISCLOSURE ACT ........................................................... 609
A. The Seller Disclosure Statement Fails to Mention
That Absence of a Form Will Not Delay or
Otherwise Interfere with the Closing of a Real
Estate Transaction, and the Act is Ambiguous as to
Whether it Is Mandatory for the Seller to Provide a
Form to a Buyer. ......................................................... 611
B. The Seller Disclosure Statement Imposes a Lower
Standard of Liability for Sellers Under the Act
than Does the Standard Imposed by the Act.............. 613
C. The Seller Disclosure Statement States that
Sellers Will be Held Liable for Failing to Disclose
Information Regarding Defects in Real Property of
Which They Had Constructive Knowledge,
Whereas the Act Is Ambiguous About Holding
Sellers Liable for Constructive Knowledge. ............... 615
D. The Seller Disclosure Statement Misleads Sellers
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IV.
V.
VI.
[Volume VI
by Suggesting that the Act Imposes Liability on
Them for Their Merely Providing Incomplete
Information Rather than for Their Knowingly
Providing Incomplete Information. ............................ 618
ADDITIONAL PROBLEMS WITH THE SELLER
DISCLOSURE STATEMENT ........................................... 619
SUMMARY OF RECOMMENDED REVISIONS TO
THE SOUTH CAROLINA RESIDENTIAL PROPERTY
CONDITION DISCLOSURE ACT AND THE SOUTH
CAROLINA SELLER DISCLOSURE STATEMENT ....... 623
CONCLUSION .................................................................. 624
APPENDIX A: STATE OF SOUTH CAROLINA
RESIDENTIAL PROPERTY CONDITION DISCLOSURE
STATEMENT……………………………………………………..626
APPENDIX B: STATE OF SOUTH CAROLINA
RESIDENTIAL PROPERTY CONDITION DISCLOSURE
STATEMENT……………………………………………………..630
I. INTRODUCTION
Within the context of purchasing residential real estate in
South Carolina, the doctrine of caveat emptor, “let the buyer beware,” is a relic of the past. Like many states, South Carolina has
enacted a seller disclosure statute, the Residential Property Condition Disclosure Act (the Act),1 which protects purchasers of real
* J.D. Candidate, May 2012, Charleston School of Law; A.B., June 2001, Dartmouth College. First, I would like to thank Professor Kevin Eberle for his feedback during the writing process. Like all of Eberle’s “peeps,” I feel like I
learned the art of legal writing from the best. Second, a heartfelt thanks is
owed to Professor Steve Spitz, a great mentor, who gave me the idea for this
paper. Professor Spitz instilled in me a love for property law that will continue
well into my legal career. Finally, this article would not have been possible
without the editorial assistance of Sylvia Maddox, class of 2012. Your wit and
attention to detail are always appreciated.
1. S.C. CODE ANN. §§ 27-50-10 to -270 (2007). Article 1 of the Act is titled
“Residential Property Condition Disclosure Statements” and begins with section
27-50-10. Article 2 is titled “The South Carolina Vacation Rental” and begins
with section 27-50-210. This Note discusses only Article 1.
600
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property from unscrupulous sellers who would knowingly sell a
piece of property with physical defects or other problems that
would materially affect the value of the property.2
To carry out the purpose of the Act, the South Carolina legislature established the South Carolina Real Estate Commission
(the Commission)3 to create a form that would become the state’s
seller disclosure statement.4 The Commission consists of nine
members, and six of these nine members are realtors, real estate
agents, or real estate brokers.5 Not surprisingly, a seller disclosure form created and drafted by residential real estate brokers
protects not only the purchasers of real estate, but also the brokers themselves. The only party to a residential real estate
transaction that does not appear to have an advocate on the
Commission is the seller of residential real estate in South Carolina.6
2. Id. § 27-50-65.
3. The South Carolina Real Estate Commission is composed of “[a]n ad-
ministrative staff and nine appointed or elected Commission members[—]one
from each of the six congressional districts and one-at-large, all of whom are actively engaged in the real estate business; and two public members who are
no[t] engaged in the real estate business.” Frequently Asked Questions, S.C.
DEP’T LABOR, LICENSING & REG., http://www.llronline.com/pol/rec/FAQ_Board.
htm (last visited Nov. 13, 2011). The Real Estate Commission defines itself as a
“state regulatory office [that] administers the real estate license law found in
Title 40, Chapter 57 of the S.C. Code of Laws.” Id. Title 40, Chapter 57 contains
the law that governs real estate brokers, salesmen, and property managers in
South Carolina. S.C. CODE ANN. § 40-57-5 (2011). Additionally, section 40-57-10
states that the South Carolina’s Department of Labor, Licensing, and Regulation (LLR) created the commission and that the commission’s purpose “is to regulate the real estate industry so as to protect the public’s interest when involved in real estate transactions.” Id. § 40-57-10.
4. S.C. CODE ANN. § 27-50-40 (2007) (stating that the “disclosure statement must contain the language and be in the form promulgated by the commission.”).
5. A list of the names of the current members of the board of the real estate commission can be found on the LLR website. Board Member Listing, S.C.
DEP’T LABOR, LICENSING & REG., https://verify.llronline.com/BoardMembers/
BoardMem.aspx (last visited Nov. 13, 2011). The author discovered the occupation of each member of the board by performing a search on google.com.
6. This Note focuses on the sale of residential real estate only. Many
states enact seller disclosure statutes to protect unsophisticated homebuyers,
not sophisticated buyers that are more common in commercial real estate
transactions. Kathleen McNamara Tomcho, Note, Commercial Real Estate Buyer Beware: Sellers May Have the Right to Remain Silent, 70 S. CAL. L. REV.
1571, 1572–73 (1997).
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This Note discusses how the current text of the South Carolina seller disclosure statement misleads sellers of residential real
estate into believing the Act imposes more requirements and liability than actually exists. In addition, this Note recommends
ways to revise the form and make it more consonant with the
Residential Property Condition Disclosure Act, as it is written.
Last, this Note recommends improvements to the language of the
Act itself.
II. HISTORY BEHIND SELLER DISCLOSURE STATEMENTS
A. Demise of Caveat Emptor
Until the middle of the last century, sellers of real estate did
not have to inform buyers of physical defects in their property.7
The maxim caveat emptor, “let the buyer beware,” was the overwhelmingly accepted doctrine for many years.8 The doctrine allowed sellers to refrain from disclosing any information that
might affect the value of their property in negotiations with a
buyer.9 As long as the seller of real property remained silent
about defective conditions of his property, he did not have any
liability to a buyer.10 The burden of discovering any problems
with a piece of real estate was solely on the buyer, and “[t]he
courts were not sympathetic to a buyer who was not diligent.”11 A
seller would have liability only if he made an affirmative misrepresentation about his property or if he actively participated in
the fraudulent concealment of problems with his property.12
With the movement of consumer protection laws that arose in
the 1960s, courts and legislatures across the country began to
impose ever-increasing duties on sellers to disclose to prospective
buyers information about property being sold.13 Although there
7. Florrie Young Roberts, Disclosure Duties in Real Estate Sales and Attempts to Reallocate the Risk, 34 CONN. L. REV. 1, 1 (2001).
8. Id.
9. Id.
10. Id.
11. Id. at 4.
12. Id. at 3.
13. Lynda J. Oswald, The Seller’s Common-Law Duty to Disclose Off-Site
Environmental Contamination, 30 REAL EST. L. J. 155, 157 (2001). See also
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“Seller Beware”
are still a few states that adhere to the doctrine of caveat emptor,14 many states have now passed legislation that requires a
seller to disclose defects in the condition of the property to a potential purchaser.15 As a result of this legislation, many states
now require sellers to fill out seller disclosure forms that reveal
any problems with the condition of their property, and the sellers
must give these forms to potential buyers prior to the signing of a
sales contract for the property.16
George Lefcoe, Property Condition Disclosure Forms: How the Real Estate Industry Eased the Transition from Caveat Emptor to “Seller Tell All”, 39 REAL
PROP. PROB. & TR. J. 193, 195–96 (2004). By 1980, the South Carolina Supreme
Court recognized that the law involving seller disclosure of property defects was
changing. MacFarlane v. Manly, 264 S.E.2d 838, 840 (S.C. 1980). The court
wrote: “In years gone by, the tendency of the law was to let the buyer beware in
real estate transactions. The more recent trend at the law is to hold the seller to
a more strict accountability.” Id.
14. Massachusetts, Utah, Alabama, and Montana still do not impose a duty to disclose defects on a seller of real property by either common law or statute. Lefcoe, supra note 13, at 195 n.8.
15. Lefcoe, supra note 13, at 196 n.9. The following thirty-three states have
enacted statutes requiring a seller to disclose defects with his property before a
contract of sale has been signed: ALASKA STAT. §§ 34.70.010 to .200 (2004); CAL.
CIV. CODE §§ 1102–1102.17, 1103 (West 2007); CONN. GEN. STAT. ANN. §§ 20327b to -327f (West 2008); D.C. CODE ANN. §§ 42-1301 to -1311 (2001 & Supp.
2006); DEL. CODE ANN. tit. 6, §§ 2570–2578 (2011); HAW. REV. STAT. ANN. §§
508D-1 to -19 (LexisNexis Supp. 2008); IDAHO CODE §§ 55-2501 to -2513 (Michie
2003); 765 Ill. COMP. STAT. ANN. §§ 77/1 to 77/99 (West 2001); IND. CODE ANN. §§
32-21-5-1 to -13 (West 2002); IOWA CODE ANN. §§ 558A.1 to .8 (2011); KY. REV.
STAT. ANN. § 324.360 (Michie 2001); LA. REV. STAT. ANN. § 3195–3200 (2009);
ME. REV. STAT. ANN. tit. 33, §§ 171–179 (Supp. 2008); MINN. STAT. ANN. §§
513.52 to .60 (West Supp. 2011); MISS. CODE ANN. §§ 89-1-501 to -525 (1999);
Mont. Code Ann. § 75-3-606 (2000) (requiring seller disclose only radon testing);
NEB. REV. STAT. ANN. §§ 76–2, 120 (Michie 1995); NEV. REV. STAT. ANN. §§
113.120 to .150 (Michie Supp. 2004) (requiring disclosure only of private water
supply and sewage disposal); N.H. REV. STAT. ANN. § 477:4-c (LexisNexis Supp.
2003); N.Y. REAL PROP. LAW. §§ 460–467 (McKinney 2006); N.C. GEN. STAT. ANN.
§§ 47E-1 to -10 (West 2000); OHIO REV. CODE ANN. § 5302.30 (West 1995 &
Supp. 2002); OKLA. STAT. ANN. tit. 60, §§ 831–839 (West 2010); OR. REV. STAT.
ANN. §§ 105.465 to .490 (West 2003); 68 PA. CONS. STAT. ANN. §§ 7301–7315
(West 2004); R.I. GEN. LAWS §§ 5-20.8-1 to -11 (2004 & Supp. 2005); S.C. CODE
ANN. §§ 27-50-10 to -110 (2007); S.D. CODIFIED LAWS §§ 43-4-37 to -44 (Michie
1997); TENN. CODE ANN. §§ 66-5-201 to -210 (Supp. 2004); TEX. PROP. CODE ANN.
§ 5.008 (West 2004); VA CODE ANN. §§ 55-517 to -525 (West 2010); WASH. REV.
CODE ANN. §§ 64.06.005 to .900 (West 2005); WIS. STAT. ANN. §§ 709.01 to .08
(West 2011).
16. Lefcoe, supra note 13, at 197.
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B. Remedies Available Under the Common Law in South
Carolina for Failure to Disclose Defects in Real Property
Under the common law in South Carolina, a seller of residential real estate cannot keep silent and leave the buyer to discover
defects on his own.17 When sellers fail to disclose defects in real
property, litigation often centers on the physical condition of the
property.18 South Carolina imposes a duty of disclosure on a seller.19 The seller must disclose a defect that is (1) known to the
seller, (2) not observable to the prospective buyer, and (3) “material.”20
For a defect to be known to a seller, the defect must be within
the seller’s actual or constructive knowledge.21 Actual knowledge
17. Lawson v. Citizens & S. Nat’l Bank of S.C., 193 S.E.2d 124, 128 (S.C.
1972) (stating “[i]t is a practically universal rule that under circumstances
which make it the duty of the seller to apprise the buyer of the defects in the
subject matter of the sale known to the seller but not to the buyer, suppressio
veri is as much fraud as suggestio falsi.”). Suppressio veri is “[s]uppression of
the truth; a type of fraud.” BLACK’S LAW DICTIONARY 1578 (9th ed. 2009). Suggestio falsi is “[a] false representation or misleading suggestion.” Id. at 1571.
18. See MacFarlane, 264 S.E.2d 838 (termite and water damage); Lawson,
193 S.E.2d 124 (foundation problem); Cohen v. Blessing, 192 S.E.2d 204 (S.C.
1972) (insect infestation); Moseley v. All Things Possible, Inc., 694 S.E.2d 43
(S.C. Ct. App. 2010) (falsified plat hid existence of a drainage easement); LoPresti v. Burry, 612 S.E.2d 730 (S.C. Ct. App. 2005) (property was located on a
floodplain); and Nine v. Henderson, 437 S.E.2d 182 (S.C. Ct. App. 1993) (termites).
19. Lawson, 193 S.E.2d at 126–27; see also Holly Hill Lumber Co. v.
McCoy, 23 S.E.2d 372, 376 (S.C. 1942) (“The general doctrine with respect to
concealment or non-disclosure as a form of actual fraud may be stated as follows: If either party to a transaction conceals some fact which is material,
which is within his own knowledge, and which it is his duty to disclose, he is
guilty of actual fraud.”).
20. Lawson, 193 S.E.2d at 126–27. In most jurisdictions, these three elements are common to a seller’s duty to disclose. See Oswald, supra note 13.
21. See Rogers v. Scyphers, 161 S.E.2d 81, 84 (S.C. 1968) (“We think there
was a duty on the defendants as builders to use reasonable care in the construction of the home to avoid unreasonable risk and danger to those who would
normally be expected to occupy it, and a duty to disclose to the purchaser any
dangerous condition of which they knew or should have known, in the exercise of
reasonable care.”) (emphasis added); see also Faulkner v. Millar, 460 S.E.2d 378,
381 (S.C. 1995) (“There is no requirement that the person whose silence misleads another have actual knowledge of the true facts if circumstances are such
that knowledge is necessarily imputed to him.”).
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is “direct and clear knowledge.”22 In contrast, constructive knowledge is “knowledge that one using reasonable care or diligence
should have, and therefore that is attributed by law to a given
person.”23
Furthermore, to require disclosure, the seller must also know
that problems with the property are unknown to the buyer.24 In
addition, these problems must not be observable by the buyer nor
may they be within the reach of the buyer’s diligent attention.25
The burden to disclose a defect is only placed on the seller when
the defects are latent or of a nature that the buyer could not discover through the exercise of due diligence.26 Also, a seller will be
liable for a defect in the property only if it is shown that the seller had such knowledge at the time of the sale.27
Finally, a defect in a seller’s property must be “material”
enough to affect the value of the property between negotiating
parties.28 This standard of materiality relieves a seller at common law from the duty to disclose minor defects that would not
concern ordinary sellers and buyers.29
For many years in South Carolina, a common law action for
fraud or fraudulent concealment was the only remedy for a buyer
when a seller of used real property failed to disclose a defect in
22. BLACK’S LAW DICTIONARY 950 (9th ed. 2009).
23. Id.
24. See Cohen v. Blessing, 192 S.E.2d 204, 205–06 (S.C. 1972) (“The better
reasoned recent decisions . . . have found a duty on the seller to disclose [defects] in the property known to him, but unknown to, and not readily observable
upon reasonable inspection by the purchaser.”) (internal citation and quotations
omitted).
25. Id. The South Carolina Court of Appeals has stated that a buyer’s diligent and reasonable inspection of a property would include such actions as hiring an attorney, conducting a title search, and obtaining a survey of the property. Moseley v. All Things Possible, Inc., 694 S.E.2d 43, 46 (S.C. Ct. App. 2010).
26. Lawson v. Citizens & S. Nat’l Bank of S.C., 193 S.E.2d 124, 127 (S.C.
1972) (stating “when there exists in the property which is the subject of a sale
latent defects or hidden conditions not discoverable on a reasonable examination of the property, the seller, if he has knowledge thereof, is bound to disclose
such latent defects or conditions to the buyer, and his failure to do so may be
made the basis of a charge of fraud.”) (internal citation and quotations omitted).
27. See, e.g., Cohen, 192 S.E.2d at 205–06; Nine v. Henderson, 437 S.E.2d
182, 183 (S.C. Ct. App. 1993); May v. Hopkinson, 347 S.E.2d 508, 512, 514 (S.C.
Ct. App. 1986).
28. Lawson, 193 S.E.2d at 128.
29. Roberts, supra note 7, at 4–5.
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the property.30 Under the common law, a buyer may assert the
legal theory of fraud when he believes a seller has made an affirmative misrepresentation about the property or has fraudulently concealed material information about the property.31 For a
plaintiff to recover under an action for fraud in South Carolina,
the plaintiff must prove by clear, cogent, and convincing evidence
the following nine elements: (1) a representation; (2) its falsity;
(3) its materiality; (4) either knowledge of its falsity or a reckless
disregard of its truth or falsity; (5) intent that the representation
be acted upon; (6) the hearer’s ignorance of its falsity; (7) the
hearer’s reliance on its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury.32 When
the South Carolina legislature adopted the Residential Property
Condition Disclosure Act in 2003, an action for fraud or fraudulent concealment no longer was the sole remedy available to a
buyer against a seller for failure to disclose a defect in residential
property.33
C. Advent of Seller Disclosure Statutes
In addition to a common law duty to disclose defects, nearly
two-thirds of state legislatures have enacted statutory duties of
disclosure.34 “Generally, the defects that require disclosure are
30. This Note does not delve into the remedies available under the common
law or statute for developers or builders of new homes. Builders of new homes
are subjected to “court and legislature-imposed implied warranties of habitability and workmanship.” See Lefcoe, supra note 13, at 209–10. Such a topic is
beyond the scope of this Note.
31. See MacFarlane v. Manly, 264 S.E.2d 838, 838–39 (S.C. 1980); Lawson,
193 S.E.2d at 126; Cohen, 192 S.E.2d at 205; Holly Hill Lumber Co. v. McCoy,
23 S.E.2d 372, 375–76 (S.C. 1942); Moseley v. All Things Possible, Inc., 694
S.E.2d 43, 45 (S.C. Ct. App. 2010); LoPresti v. Burry, 612 S.E.2d 730, 731–32
(S.C. Ct. App. 2005); Nine, 437 S.E.2d at 183.
32. Moseley, 694 S.E.2d at 45 (quotation marks omitted); Parker v. Shecut,
531 S.E.2d 546, 558 (S.C. Ct. App. 2000).
33. See S.C. CODE ANN. §§ 27-50-10 to -270 (2007).
34. See ALASKA STAT. §§ 34.70.010 to .200 (2004); CAL. CIV. CODE §§ 1102–
1102.17, 1103 (West 2007); CONN. GEN. STAT. ANN. §§ 20-327b to -327f (West
2008); D.C. CODE ANN. §§ 42-1301 to 1311 (2001 & Supp. 2006); DEL. CODE ANN.
tit. 6, §§ 2570–2578 (2011); HAW. REV. STAT. ANN. §§ 508D-1 to -19 (LexisNexis
Supp. 2008); IDAHO CODE §§ 55-2501 to -2513 (Michie 2003); 765 Ill. COMP. STAT.
ANN. §§ 77/1 to 77/99 (West 2001); IND. CODE ANN. §§ 32-21-5-1 to -13 (West
2002); IOWA CODE ANN. §§ 558A.1 to .8 (2011); KY. REV. STAT. ANN. § 324.360
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“Seller Beware”
material and unobservable to the prospective buyer.”35 Usually,
“the disclosure statutes supplement, but do not supersede, the
common law duty of disclosure.”36
South Carolina’s Residential Property Condition Disclosure
Act provides that the seller disclosure form does not relieve the
seller of the common law duty of disclosure. A duty under the
common law is retained under the Act––namely that a seller
must still disclose a defect that is known to the seller, not observable to the prospective buyer, and material.37
However, specific disclosure requirements of the Act go
beyond the common law duty.38 For example, the Act enumerates
a specific list of conditions or characteristics of property that
must be evaluated by the seller.39 In contrast, there is no list of
specific characteristics or conditions of property that must be disclosed under the common law in South Carolina. A duty of disclosure is triggered only if the seller knew of the defect, the buyer
(Michie 2001); LA. REV. STAT. ANN. § 3195–3200 (2009); ME. REV. STAT. ANN. tit.
33, §§ 171–179 (Supp. 2008); MINN. STAT. ANN. §§ 513.52 to .60 (West Supp.
2011); MISS. CODE ANN. §§ 89-1-501 to -525 (1999); MONT. CODE ANN. § 75-3-606
(2000) (requiring seller disclose only radon testing); NEB. REV. STAT. ANN. §§ 76–
2, 120 (Michie 1995); NEV. REV. STAT. ANN. §§ 113.120 to .150 (Michie Supp.
2004) (requiring disclosure only of private water supply and sewage disposal);
N.H. REV. STAT. ANN. § 477:4-c (LexisNexis Supp. 2003); N.Y. REAL PROP. LAW.
§§ 460–467 (McKinney 2006); N.C. GEN. STAT. ANN. §§ 47E-1 to -10 (West 2000);
OHIO REV. CODE ANN. § 5302.30 (West 1995 & Supp. 2002); OKLA. STAT. ANN. tit.
60, §§ 831–839 (West 2010); OR. REV. STAT. ANN. §§ 105.465 to .490 (West 2003);
68 PA. CONS. STAT. ANN. §§ 7301–7315 (West 2004); R.I. GEN. LAWS §§ 5-20.8-1
to -11 (2004 & Supp. 2005); S.C. CODE ANN. §§ 27-50-10 to -110 (2007); S.D.
CODIFIED LAWS §§ 43-4-37 to -44 (Michie 1997); TENN. CODE ANN. §§ 66-5-201 to
-210 (Supp. 2004); TEX. PROP. CODE ANN. § 5.008 (West 2004); VA CODE ANN. §§
55-517 to -525 (West 2010); WASH. REV. CODE ANN. §§ 64.06.005 to .900 (West
2005); WIS. STAT. ANN. §§ 709.01 to .08 (West 2011).
35. Roberts, supra note 7, at 15 (citing Illinois Residential Real Estate
Property Disclosure Act, 765 Ill. COMP. STAT. ANN. § 77/1 (West 1993); 68 PA.
STAT. ANN. § 1025 (West Supp. 2001); and CAL. CIV. CODE § 1102.1 (West Supp.
2001)).
36. Roberts, supra note 7, at 16.
37. The South Carolina code states that “[t]his article does not limit any
other remedy available to the purchaser under law.” S.C. CODE ANN. § 27-5050(C) (2007). In other words, the Act does not prevent a purchaser from also
bringing an action available under common law, such as fraud or fraudulent
concealment, against a seller. Id.
38. See id. § 27-50-40(A).
39. Id.
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could not observe the defect, and the defect was material.40
In addition, the statutory duty of disclosure in South Carolina requires that a seller knowingly make a false, misleading, or
incomplete statement about his property for liability to attach to
a seller.41 This is an easier standard than proving fraud under
the common law.42 To summarize, in South Carolina the statutory and common law disclosure duties run concurrently but are
not identical.43
D. Typical Seller Disclosure Statement
In Professor George Lefcoe’s article, Property Condition Disclosure Forms: How The Real Estate Industry Eased the Transition from Caveat Emptor to “Seller Tell All,”44 he describes the
typical seller disclosure statement:
Seller disclosure forms usually are four to eight pages, single
spaced. The forms vary considerably in the items covered. Most
of the forms contain a list of appliances, fixtures, and some
items of personal property (e.g., satellite dish, storage shed,
microwave, window screens), which offers the seller a chance to
disclose defects concerning these items . . . . Most of the forms
also list structural components, such as driveways, retaining
walls, bearing walls, chimneys, windows, doors, exterior stucco,
floors, foundations, roofs, sewer hook-ups, water systems, sump
pumps, cut and fill, termite and rodent infestation . . . . Typically, forms inquire about heating and air conditioning, plumbing, and electrical systems . . . . Title questions appear on a
minority of forms, such as how long the seller has occupied the
house, whether the seller knows of existing lawsuits concern40. See Lawson v. Citizens & S. Nat’l Bank of S.C., 193 S.E.2d 124, 127
(S.C. 1972) (stating “[W]hen there exists in the property which is the subject of
a sale latent defects or hidden conditions not discoverable on a reasonable examination of the property, the seller, if he has knowledge thereof, is bound to
disclose such latent defects or conditions to the buyer, and his failure to do so
may be made the basis of a charge of fraud.”) (internal citation and quotations
omitted).
41. S.C. CODE ANN. § 27-50-65 (2012).
42. As previously discussed in Part II.B, a buyer in South Carolina must
successfully prove nine elements in an action for fraud.
43. Roberts makes this same observation between California’s common law
and its seller disclosure statute. Roberts, supra note 7, at 16–17.
44. Lefcoe, supra note 13.
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“Seller Beware”
ing the property, boundary or lot line disputes, whether the
property is leased, whether there is a homeowner’s association,
any easements other than utility easements, any encroachments upon neighboring properties or of neighboring structures upon the subject property, or any planned road widenings
. . . . The language of disclosure forms must take into account
whether sellers have the choice of opting out . . . . [Forms will
usually allow sellers to mark a response of] “Yes,” “No,” or “No
Representation” [to a question regarding the condition of the
property].45
South Carolina’s seller disclosure statement is typical of such
forms as described above.46
III. THE SOUTH CAROLINA SELLER DISCLOSURE
STATEMENT DOES NOT AGREE WITH THE LANGUAGE OF
THE SOUTH CAROLINA RESIDENTIAL PROPERTY
CONDITION DISCLOSURE ACT
South Carolina’s seller disclosure statute is known as The
Residential Property Condition Disclosure Act.47 The Act requires
the seller to sign a seller disclosure statement 48 and states that
the “the disclosure statement must contain the language and be
in the form promulgated by the commission.”49 However, the Act
itself contains no model verbatim language that all disclosure
statements must use. Nonetheless, it would seem logical that the
seller disclosure statement would be in agreement with the Act.
In reality, however, the form conflicts with the language of the
Act in four important ways: (1) the seller disclosure statement
fails to mention the provision in the Act that indicates that failure to provide the form will not delay or otherwise interfere with
the closing of a real estate transaction;50 (2) the seller disclosure
statement imposes a lower standard of liability for sellers under
45. Lefcoe, supra note 13, at 232–38.
46. See infra app. A (State of South Carolina Residential Property Condi-
tion Disclosure Statement).
47. S.C. CODE ANN. § 27-50-10 to -270 (2012).
48. Id. § 27-50-40(A).
49. Id. Under section 27-50-10, the definitional section of the Act, “commission” means the South Carolina Real Estate Commission. Id. § 27-50-10(1).
50. Id. § 27-50-50(B).
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the Act (i.e., negligence) than does the standard imposed by the
Act (i.e., liability is only imposed for “knowingly” making false,
incomplete, or misleading statements regarding material information about the home);51 (3) the seller disclosure statement
states that a seller will be held liable for failing to disclose information regarding defects in real property of which the seller had
constructive knowledge, whereas the Act is ambiguous about
holding sellers liable for constructive knowledge;52 and (4) the
seller disclosure statement misleads the seller by suggesting that
the Act imposes liability on the seller for his merely providing incomplete information rather than for his knowingly providing incomplete information.53 Each of the four ways that the seller disclosure statement departs from the language of the Act is
discussed below.
A. The Seller Disclosure Statement Fails to Mention that
Absence of a Form Will Not Delay or Otherwise Interfere with
the Closing of a Real Estate Transaction, and the Act Is
Ambiguous as to Whether it is Mandatory for the Seller to
Provide a Form to a Buyer.
The very first line of the South Carolina seller disclosure
statement misleads a seller of residential real estate:
South Carolina Code of Laws Title 27 Chapter 50 Article I requires that beginning January 1, 2003, an owner of residential
real estate (single-family homes and buildings with up to four
dwelling units) shall provide to a purchaser this property condition disclosure statement which must be completed prior to
51. Id. § 27-50-65.
52. The only provision in the statute that refers to checking “no represen-
tation” on the seller disclosure form is § 27-50-40(B) which states: “The disclosure statement must give the owner the option to indicate that the owner has
actual knowledge of the specified characteristics or conditions, or that the owner is making no representations as to any characteristic or condition.” Id. § 2750-40(B) (emphasis added).
53. At the end of the South Carolina seller disclosure statement, the seller
provides his signature in a box labeled “Owner(s) Acknowledgement.” The signature authenticates that “Owner(s) acknowledge having examined this statement before signing and that all information is true and correct as of the date
signed.” See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 4.
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signing a contract of sale.54
The form expressly states that a seller disclosure statement
is required of sellers.55 This requirement differs from the actual
language of the Act found in S.C. Code section 27-50-50(A)–(B),
section 27-50-30(13), and section 27-50-110.56
The first part of section 27-50-50(A) states the content of the
form: “The owner of real property subject to this article shall deliver to the purchaser the disclosure form required by this article
before a real estate contract is signed by the purchaser and owner, or as otherwise agreed in the real estate contract.”57 However,
the seller disclosure statement does not prominently mention the
last dependent clause, “or as otherwise agreed in the real estate
contract.”58 It should. The seller of property needs to know clearly, in emphatic language, that the seller can contract around providing a seller disclosure statement if the seller so desires. The
seller disclosure statement does not mention this clause upfront;
instead, it is buried in the middle of a sentence under section four
of the form.59 It would be better simply to collapse sections one
and four into a single section at the beginning of the form. Thus,
the first few lines at the beginning of the form could read:
South Carolina Code of Laws Title 27 Chapter 50 Article 1
suggests that beginning January 1, 2003, an owner of residential real estate (single-family homes and buildings with up to
four dwelling units) should provide to a purchaser this property condition disclosure statement which should be completed
prior to signing a contract of sale. However, the seller can contract out of providing this seller disclosure statement with the
54. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1 (emphasis added).
55. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1.
56. Compare infra app. A (State of South Carolina Residential Property
Condition Disclosure Statement), at 1, with S.C. Code Ann. §§ 27-50-13(13), 2750-50(A)–(B), and 27-50-110 (2012).
57. S.C. CODE ANN. § 27-50-50(A) (2012) (emphasis added).
58. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1.
59. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1.
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purchaser.60
In addition, the form fails to include the following key provision in the statute under section 27-50-50(B):
Failure to provide the disclosure form required by this article
to the purchaser does not: (1) void the agreement; (2) create a
defect in the title; or (3) present a valid reason to delay or otherwise interfere with the closing of a real estate transaction by
a party including a closing attorney or lender.61
If sellers knew that refraining from providing a seller disclosure statement would not interfere with the closing on the sale of
their home, they might elect to not provide one. However, under
the current language of the form, sellers are not even presented
with that option.
While section 27-50-50(A) seems to mandate that a seller give
a seller disclosure statement to the buyer, section 27-50-50(B)
seems to lessen the consequences of not giving one by clearly
stating that failure to provide the form will not hinder the closing
of the real estate transaction.62 In other words, the Act seems to
say, “The seller disclosure is important but not so important as to
prevent the sale from happening.”
Next, section 27-50-30(13), a section of the Act dealing with
certain transfers of property that are excluded from the Act, expressly states: “This article does not apply to transfers between
parties when both parties agree in writing not to complete a disclosure statement.”63 Thus, in addition to sections 27-50-50(A)–
(B), the Act expressly states the possibility of a seller not providing a buyer with a seller disclosure statement.64
60. See infra app. B (Proposed Revisions to State of South Carolina Residential Property Condition Disclosure Statement), at 1 (emphasis added). In
addition to letting the seller know he can contract around providing a seller disclosure statement, this new language replaces “requires” with “suggests”; it also
replaces “shall” and “must” with “should.” See infra app. B (Proposed Revised
State of South Carolina Residential Property Condition Disclosure Statement),
at 1.
61. S.C. CODE ANN. § 27-50-50(B) (2007) (emphasis added). See infra app. B
(Proposed Revised State of South Carolina Residential Property Condition Disclosure Statement).
62. S.C. CODE ANN. § 27-50-50(A)–(B) (2007).
63. Id. § 27-50-30 (13).
64. Id. § 27-50-50(A)–(B).
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“Seller Beware”
Last, section 27-50-110 allows a seller to sell his property to a
buyer on an “as-is” basis––completely nullifying the requirement
that a seller must provide a form to the buyer prior to signing the
contract of sale.65 In addition, the inclusion of this provision
counters the language of section 27-50-50(A), which seems to
mandate that a seller provide a disclosure statement to the buyer.66
Sections 27-50-50(A) and (B) reflect an ambiguity in the Act
that needs to be resolved. The first part of section 27-50-50(A)
uses the word “shall,” which makes providing a seller disclosure
statement mandatory for the sale of residential real estate.67
However, section 27-50-50(B) expressly states that not providing
the form will not interfere with the closing of a real estate transaction, thus the sale may be completed without the form.68 Furthermore, the Act does not punish or penalize a seller for failing
to provide a form.69 The Act truly states two different things as to
whether a seller disclosure form is required of a seller of residential real estate in South Carolina.
B. The Seller Disclosure Statement Imposes a Lower Standard of
Liability for Sellers Under the Act than Does the Standard
Imposed by the Act.
Section two of the form states: “You must check one of the
boxes for each of the twenty-four questions on pages two and
three of this form.”70 These questions refer to different physical
aspects of the seller’s property.71 Section 2(a) then states:
If you check “Yes” for any question, you must explain the problem or attach a descriptive report from an engineer, contractor,
65. Id. § 27-50-110.
66. See infra app. B (Proposed Revised State of South Carolina Residential
Property Condition Disclosure Statement), at 1.
67. S.C. CODE ANN. § 27-50-50(A) (2007).
68. Id. § 27-50-50(B).
69. Id.
70. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1.
71. See infra app. A at 2–3. The questions inquire about such items as the
electrical system of the home, the water supply, and environmental hazards
that might affect the property. Id.
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pest control operator or other expert or public agency. If you attach a report, you will not be liable for any inaccurate or incomplete information contained in the report as long as you
were not grossly negligent in obtaining or transmitting the information.72
Under the Act, the standard of liability for a seller who fails
to disclose a defective condition in his property is one of actual or
constructive knowledge––not negligence.73 Yet, the words of the
form state the contrary and mislead the seller to believe that any
type of negligence will impose liability under the Act when only
knowingly making false, incomplete, or misleading statements
regarding material information about the property will impose
72. See infra app. A at 2-3. (emphasis added).
73. There are three different sections in the Act that address the standard
of liability for a seller who fails to disclose a defective condition in his property:
Section 27-50-40(C), Section 27-50-60, and Section 27-50-65. Section 27-5040(C) states: “The rights of the parties to a real estate contract in connection
with conditions of the property of which the owner has no actual or constructive
knowledge are not affected by this article.” S.C. CODE ANN. § 27-50-40(C) (2007)
(emphasis added). Section 27-50-60 states:
If the owner discovers, after his delivery of a disclosure statement to a
purchaser, a material inaccuracy in the disclosure statement or the
disclosure is rendered inaccurate in a material way by the occurrence
of some event or circumstance, the owner shall correct promptly the
inaccuracy by delivering a corrected disclosure statement to the purchaser or make reasonable repairs necessitated by the occurrence before closing.
Id. § 27-50-60 (emphasis added). Although the statute does not expressly
state it here, the word “discovers” denotes a form of actual knowledge. See
id. Finally, Section 27-50-65 states:
An owner who knowingly violates or fails to perform any duty prescribed by any provision of this article or who discloses any material
information on the disclosure statement that he knows to be false, incomplete, or misleading is liable for actual damages proximately
caused to the purchaser and court costs. The court may award reasonable attorney fees incurred by the prevailing party.
Id. § 27-50-65 (emphasis added). See also Winters v. Fiddie, 716 S.E.2d 316,
328 (S.C. Ct. App. 2011) (Few, J., concurring in part and dissenting in part)
(“While the Residential Property Condition Disclosure Act imposes a duty on a
seller of residential property to disclose to buyers environmental conditions
such as the existence of mold, this duty is not in negligence. In order to recover
damages for the breach of this statutory duty of disclosure, a plaintiff must
prove more than mere negligence on the part of the seller. Such a plaintiff must
prove the seller knew of the mold and knowingly failed to disclose it.”).
614
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“Seller Beware”
such liability.74
C. The Seller Disclosure Statement States that Sellers Will be
Held Liable for Failing to Disclose Information Regarding
Defects in Real Property of Which They Had Constructive
Knowledge, Whereas the Act Is Ambiguous About Holding
Sellers Liable for Constructive Knowledge.
As previously mentioned, the Act imposes liability for knowingly violating or knowingly failing to follow the statute.75 It also imposes liability on sellers who disclose information they know
to be false, incomplete, or misleading.76 If a seller meets these
criteria, the seller will be liable for damages caused to the purchaser, court costs, and reasonable attorney fees incurred by the
prevailing purchaser.77
While the Act directly discusses liability for actual knowledge
of defective conditions in property,78 it only obliquely references
that liability will attach for constructive knowledge of defective
conditions in property.79 However, section 2(c) of the seller disclosure statement clearly imposes liability for the seller based on
constructive knowledge of a defective condition, whereas the language of the Act is not so bold.80 Section 2(c) states:
If you check “No Representation” for any question, you are stating
that you are making no representation regarding the conditions or
characteristics of the property, but you may have a duty to disclose
even if you know or should have known of them. Please consult with
an attorney to determine any potential liability you may have for
checking this answer.81
74. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1.
75. S.C. CODE ANN. § 27-50-65 (2007).
76. Id.
77. Id.
78. Id.
79. S.C. CODE ANN. § 27-50-40(C) is the only section that expressly references constructive knowledge, and it does so in an indirect way. It states: “The
rights of the parties to a real estate contract in connection with conditions of the
property of which the owner has no actual or constructive knowledge are not affected by this article.” Id. (emphasis added).
80. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1.
81. See infra app. A (State of South Carolina Residential Property Condi-
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The problem with this provision is that the Act does not
clearly impose liability for constructive knowledge of a defective
condition in the property. In fact, the Act does not even define
constructive knowledge, nor does it define what it means to make
a representation under the Act.
Although the Act does not define constructive knowledge,
Black’s Law Dictionary defines constructive knowledge as
“[k]nowledge that one using reasonable care or diligence should
have, and therefore that is attributed by law to a given person.”82
The only provision in the Act that even mentions constructive
knowledge is section 27-50-40(C), which states that “[t]he rights
of the parties to a real estate contract in connection with conditions of the property of which the owner has no actual or constructive knowledge are not affected by this article.”83 After removing the words “no” and “not” from the preceding sentence, it
is clear the Act does affect the rights of parties to a real estate
contract in connection with conditions of the property where there
is constructive knowledge. Thus, it would appear that the statute
indirectly states that a seller can be liable for constructive knowledge of a defective condition in property.
Although it is debatable whether the Act actually holds sellers liable for constructive knowledge of defects in property—
assuming this notion is true—the Act also does not define what it
means to make a representation about a condition of the property.
The only provision in the Act that refers to making a representation is section 27-50-40(B), which states, “The disclosure
statement must give the owner the option to indicate that the
owner has actual knowledge of the specified characteristics or
conditions, or that the owner is making no representations as to
any characteristic or condition.”84 Although the Act does not define representation, Black’s Law Dictionary defines it as “[a]
presentation of fact—either by words or by conduct—made to intion Disclosure Statement), at 1 (emphasis added).
82. BLACK’S LAW DICTIONARY 950 (9th ed. 2009). Black’s uses an example of
the phrase as follows: “the court held that the partners had constructive knowledge of the partnership agreement even though none of them had read it.” Id.
83. S.C. CODE ANN. § 27-50-40(C) (2007) (emphasis added).
84. Id. § 27-50-40(B) (emphasis added).
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duce someone to act, esp. to enter into a contract; esp., the manifestation to another that a fact, including a state of mind, exists.”85
When a seller indicates “no representation” on the seller disclosure form, the seller is specifically abstaining from making
any sort of presentation of fact about the condition of a particular
aspect of the property. Yet, is this action on the part of the seller
not equivalent to clearly indicating to the buyer that the seller
recognizes the limits of seller’s knowledge with respect to a condition of the property? Common sense dictates that if a seller indicates on the form that the seller is making no representation
about a condition of the property, such as the electrical wiring,
then it behooves the buyer to get a home inspection on the electrical wiring. It seems unfair to later hold the seller liable for defective electrical wiring that he should have known about when
he has been candid about his lack of knowledge from the beginning, or alternatively, that he lacks confidence to indicate that he
cannot certify that there is no problem with the electrical wiring.
Even the one portion of the Act that mentions making no representations on the seller disclosure statement, section 27-5040(B), excludes the phrase “constructive knowledge.”86 Again, the
section states: “The disclosure statement must give the owner the
option to indicate that the owner has actual knowledge of the
specified characteristics or conditions, or that the owner is making no representations as to any characteristic or condition.”87
The construction of this sentence in the Act is disjunctive: the
owner can either indicate actual knowledge of a defect, or he can
indicate that he is making no representation.88 One can make the
argument that the seller is presented with two options on the
form—one that indicates actual knowledge (i.e., marking “Yes” or
“No” about knowledge of a defect in the property) and one that
does not include actual knowledge (i.e., making “no representation”). If a seller makes no representation about knowledge of a
defect in his property, this should include problems he should
have known about and insulate him from liability under the Act
85.
86.
87.
88.
BLACK’S LAW DICTIONARY 1415 (9th ed. 2009).
See S.C. CODE ANN. § 27-50-40(B) (2007).
Id. (emphasis added).
See id.
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since the seller is not knowingly making a false, misleading, or
incomplete statement about his property to the buyer for which
liability attaches under the Act.89 After all, the distinction between actual and constructive knowledge is that the former refers to actual awareness of a problem.
In sum, the form indicates that the Act holds sellers liable for
constructive knowledge of a defective condition with the property,
whereas the language of the Act is indirect at best on this point.
In addition, there is no language in the Act that states that when
a seller answers a question on the form about a condition of his
property and marks no representation, the seller will be liable for
problems that the seller should have known about. In fact, the
very act of a seller marking “no representation” on a form would
appear the easiest way to let the buyer know that the buyer
should perform an inspection himself.
D. The Seller Disclosure Statement Misleads Sellers by
Suggesting That the Act Imposes Liability on Them for Their
Merely Providing Incomplete Information Rather than for Their
Knowingly Providing Incomplete Information.
When a seller reads through the introductory language of the
seller disclosure statement and then subsequently responds to
the twenty-four questions regarding the condition of his property,
the seller sees at the end of the form a section titled “Owner(s)
Acknowledgement.”90 The seller is asked to print and sign the
seller’s name to verify the following statement: “Owner(s) acknowledge having examined this statement before signing and
that all information is true and correct as of the date signed.”91
By providing this verification, the form asks the seller to certify
that every piece of information provided by the seller in the seller
disclosure statement is “true” and “correct.”92 Such acknowledgement by the seller goes beyond what the Act requires; the Act
89. Id. § 27-50-65.
90. See infra app. A (State of South Carolina Residential Property Condi-
tion Disclosure Statement), at 4.
91. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 4.
92. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 4.
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only requires that a seller provide knowledge of a defective condition in his property to the best of his knowledge.93 Liability only
attaches to a seller when he knowingly provides false, misleading, or incomplete information about a defective condition of the
property.94 It extends to actual knowledge, and, possibly, constructive knowledge. The statute does not attach liability for a
seller unknowingly providing incomplete information about the
condition of the property.95 Yet, the form tries to ensnare the seller into making such a statement by signing its Owner(s) Acknowledgment. The language of Owner(s) Acknowledgment, if it
is to be included at all, should simply state “all information is
true and correct to the best of my knowledge.”96 Such words would
agree more with the language of the Act.
IV. ADDITIONAL PROBLEMS WITH THE SELLER
DISCLOSURE STATEMENT
Realtors, real estate brokers, and those involved in the business of selling real estate created the South Carolina seller disclosure statement.97 Not surprisingly, the Act is filled with provisions that absolve a real estate broker of liability when it comes
to failure to disclose a defect in real property.98 In many states,
seller disclosure statutes were enacted as a result of real estate
brokers lobbying for change after realizing they were increasing-
93.
94.
95.
96.
S.C. CODE ANN. § 27-50-65 (2007).
Id.
See id.
See infra app. B (Proposed Revised State of South Carolina Residential
Property Condition Disclosure Statement), at 5.
97. See supra note 3.
98. See S.C. CODE ANN. §§ 27-50-70 to -80 (2007). Section 27-50-70(B)(1)–
(2) states:
The real estate licensee [realtor], whether acting as the listing agent
or selling agent, is not liable to a purchaser if (1) the owner provides
the purchaser with a disclosure form that contains false, incomplete,
or misleading information; and (2) the real estate licensee did not
know or have reasonable cause to suspect the information was false,
incomplete, or misleading.
Id. § 27-50-70(B). Section 27-50-80 states: “The real estate licensee, whether
acting as listing agent or selling agent, has no duty to inspect the onsite or offsite conditions of the property and any improvements.” Id. § 27-50-80.
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ly the targets of lawsuits by purchasers who signed sales contracts for real property containing physical defects of which they
were not informed.99 One of the arguments brokers use to support the enactment of seller disclosure statutes is that they
should not be responsible for disclosure of physical defects in real
property when they had no expertise in matters such as engineering, surveying, or pest control.100 As a result, many states
hold a real estate broker liable only for failure to disclose a defect
when the broker had actual knowledge of a defect, or when there
was reasonable cause to suspect that information provided by a
seller was false, incomplete, or misleading.101 In addition, many
states do not require that a real estate broker inspect a piece of
real property prior to its sale.102
Instead of realtors and sellers sharing the responsibility of
disclosing defects in property to potential purchasers, the modern
trend in most jurisdictions is to place the duty to disclose primarily on the seller of residential real estate.103 However, sellers of
real estate can make many of the same valid arguments that real
estate agents can when it comes to disclosing defects. For example, the South Carolina seller disclosure statement requires a seller to make representations and evaluations about the condition
of his property that go beyond the scope of knowledge of many
ordinary homeowners.104 The South Carolina form requires a seller to make a declaration regarding the following characteristics
and conditions of property: (1) foundation; (2) previous structural
modifications in the home; (3) roof; (4) water intrusion; (5) elec99. See, e.g., Craig W. Dallon, Theories of Real Estate Broker Liability and
the Effect of the “As-Is” Clause, 54 FLA. L. REV. 395, 428 (2002); Ronald Benton
Brown & Joseph M. Grohman, Real Estate Brokers: Shouldering New Burdens,
11 PROB. & PROP. 14, 14 (1997).
100. Lefcoe, supra note 13, at 223–25.
101. Dallon, supra note 99, at 444; Katherine A. Pancak, Thomas J. Miceli
& C.F. Sirmans, Residential Disclosure Laws: The Further Demise of Caveat
Emptor, 24 REAL EST. L. J. 291, 293–94 (1996). In South Carolina’s Residential
Property Condition Disclosure Act, the relevant provisions are section 27-5070(B)(1)–(2).
102. Dallon, supra note 99, at 424–25. In South Carolina’s Residential
Property Condition Disclosure Act, the relevant provision is section 27-50-80.
S.C. CODE ANN. § 27-50-80 (2007).
103. Pancak, supra note 101, at 292.
104. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 2–3.
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trical system; (6) water supply (i.e., what types of pipes are used);
(7) whether or not there is a present infestation of termites; (8)
buried underground storage tanks; and (9) radon gas, which
tends to be odorless.105 Such disclosure duties are too burdensome to place on the average homeowner. An educated assessment of defects related to these property conditions requires expertise.
Although there are certainly situations where a seller would
be put on notice about problems arising from these aspects of his
property, one can also recognize that sometimes problems arise
unbeknownst to the seller. For example, if a buyer purchases a
home from a seller and a month later sees that a ceiling in the
corner of a room drips slightly when it rains, does that necessarily mean the seller knew about it prior to the sale? What if a purchaser discovers that his new home is presently infested with
termites, yet the sellers have no record of ever having problems
with termites before? Other similar scenarios are limited only by
one’s imagination.
When sellers sign these seller disclosure statements, they are
not warranting their property per se,106 but they are opening
themselves up to broad liability if they make a statement about a
defect that later turns out to be incomplete. Under South Carolina law, this statement of incomplete information needs to be
knowingly made.107 And, ultimately, whether a seller knowingly
fails to disclose a defect is an issue of fact to be determined by a
jury.108
The current South Carolina seller disclosure statement invites litigation because it asks the ordinary homeowner to eva105. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 2–3.
106. Lefcoe, supra note 13, at 208 (“When it comes to the sale of ‘used’ housing by ordinary homeowners . . . amateur sellers are not held liable for impliedly warranting the condition of the property sold.”). The South Carolina seller
disclosure statement informs the seller, under a section titled “Purchaser(s) Acknowledgement,” that by signing the form the seller is not warranting the condition of the property to the buyer. See infra app. A (State of South Carolina
Residential Property Condition Disclosure Statement), at 4 (“Purchaser(s) acknowledge receipt of a copy of this disclosure statement . . . that he/she understands that this is not a warranty by owner or owner’s agent . . . .”).
107. S.C. CODE ANN. § 27-50-65 (2002).
108. Winters v. Fiddie, 716 S.E.2d 316, 324 (S.C. Ct. App. 2011).
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luate conditions of his property of which the seller may have no
expertise. Rather than require a seller to fill out a form where
the seller must evaluate characteristics or conditions of his property––some of which the seller may or may not be familiar
with109––a better and more equitable procedure would be to give
the seller the option of drafting their own form that explains and
discloses problems with the seller’s property. A more general type
of form, rather than one that enumerates specific conditions to be
evaluated by a seller, would better benefit all parties involved in
the purchase of a home.110
Last, one final problem with seller disclosure statements is
that they are often presented to sellers of real property by brokers as a matter of routine. Any layperson that has been involved
in the sale of a home knows that paperwork and forms abound
when it comes to closing a real estate transaction. The reality is
the seller disclosure statement is just one of a multitude of forms
that a seller receives from a real estate agent that requires the
seller’s signature. Considering the potential liability for the seller
in completing such a form, it would be practically essential for
the seller to consult an attorney before submitting it to a real estate agent or potential purchaser. However, prior to the execution of a contract for the sale of real estate, an attorney is rarely
involved. Attorneys usually involve themselves in a real estate
transaction long after the seller disclosure statement has been
signed. Although the South Carolina seller disclosure statement
states in section 2(c): “Please consult with an attorney to determine any potential liability you may have for checking [an] an-
109. South Carolina’s seller disclosure statement makes such a requirement
of sellers of residential real estate. S.C. CODE ANN. § 27-50-40 (2007).
110. Hawaii’s seller disclosure statute provides for a seller disclosure form
that is general in nature. HAW. REV. STAT. ANN. § 508D-1 (Michie 2006). It defines a general disclosure statement as “a written statement prepared by the
seller or at the seller’s direction, that purports to fully and accurately disclose
all material facts relating to the residential real property being offered for sale
that: (1) [a]re within the knowledge or control of the seller; (2) [c]an be observed
from visible, accessible areas . . . .” Id. For a discussion of seller disclosure statutes that provide for a seller disclosure form that is either specific, general, or
a combination of the two, see Dallon, supra note 99, at 429–30. For revisions to
this portion of South Carolina’s seller disclosure statement, see infra app. B
(Proposed Revised State of South Carolina Residential Property Condition Disclosure Statement).
622
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“Seller Beware”
swer [on the seller disclosure statement.],”111 it would be wise to
place this sort of admonition at the beginning of the form in bold
letters.112
V. SUMMARY OF RECOMMENDED REVISIONS TO THE
SOUTH CAROLINA RESIDENTIAL PROPERTY CONDITION
DISCLOSURE ACT AND THE SOUTH CAROLINA SELLER
DISCLOSURE STATEMENT
The South Carolina Residential Property Condition Disclosure Act should be revised so that the language of the Act is clear
on what a seller is required to complete. The Act contains language that mandates completion of the form by a seller, but there
is also language that states that failure to provide a form will not
delay or interfere with the closing of a real estate transaction. In
addition, there is language in the Act that allows a seller to contract around completing a seller disclosure statement. Furthermore, there is an “as-is” provision in the Act, which also allows
for a seller to convey his property in “as-is” condition to a buyer
rather than completing a seller disclosure statement.113 The Act
should take a clear stance on this issue rather than leave areas of
ambiguity that increase the likelihood of litigation.
Second, the South Carolina Residential Property Condition
Disclosure Act should state in clear, plain language whether a
seller will be liable for having constructive knowledge of a defect
that he fails to disclose. In other words, does the Act punish a seller for failure to disclose a defect that he should have known
about? The language of the Act repeatedly states that sellers will
be held liable for knowingly providing false, incomplete, or misleading information with regard to a defect, but the Act also indirectly states that a seller will be held liable for constructive
knowledge.
111. See infra app. A (State of South Carolina Residential Property Condition Disclosure Statement), at 1.
112. An ideal seller disclosure statement would not enumerate specific characteristics or conditions of property to be evaluated by a seller. Instead, it
would follow a general format. However, assuming the South Carolina legislature continues to require a seller to evaluate specific conditions of his property,
this warning to a seller is a good idea.
113. See S.C. CODE ANN. § 27-50-110 (2012).
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Third, the seller disclosure statement should be revised so
that it removes any mention of liability for a seller who negligently fails to disclose a defect in real property. There is no case
law or language in the Act that supports such a construction.
Fourth, the seller disclosure statement should be converted
into a general form as opposed to one that requires a seller to
sign off on an enumerated list of conditions because it is unlikely
that any ordinary homeowner can realistically certify the quality
of every characteristic or condition of his property. It would be
fairer to the seller simply to provide a written note that states
what knowledge he has, if any, regarding any problems with his
real property and if he is aware of any improvements to his property.
Last, it would be fairer to the seller if South Carolina’s seller
disclosure statement clearly advised at the beginning of its text
that an attorney should be consulted when preparing the statement for the buyer.
VI. CONCLUSION
As most states have come to disfavor the doctrine of caveat
emptor, many have enacted seller disclosure statutes to supplement remedies available under the common law when sellers fail
to disclose defects in real property to potential buyers. These statutes invariably provide for seller disclosure forms meant to aid
buyers in making an informed purchase. South Carolina joined
the ranks of these states when it adopted the Residential Property Condition Disclosure Act and created its own seller disclosure
statement. However, South Carolina legislators should clarify the
language of the Act, and the Real Estate Commission should revise the wording of the seller disclosure statement so that it is
more consonant with the Act as it is written. Allowing both to
remain unchanged invites litigation and places sellers at a disadvantage when selling residential real estate in South Carolina.
624
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APPENDIX A:
STATE OF SOUTH CAROLINA RESIDENTIAL PROPERTY
CONDITION DISCLOSURE STATEMENT
625
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“Seller Beware”
627
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“Seller Beware”
APPENDIX B:
STATE OF SOUTH CAROLINA RESIDENTIAL PROPERTY CONDITION
DISCLOSURE STATEMENT
629
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“Seller Beware”
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“Seller Beware”
633
PROTECTING THE SILENT THIRD PARTY: THE
NEED FOR LEGISLATIVE REFORM WITH
RESPECT TO INFORMED CONSENT AND
RESEARCH ON HUMAN BIOLOGICAL
MATERIALS
Catherine K. Dunn*
I.
II.
III.
IV.
V.
VI.
INTRODUCTION .............................................................. 635
BIOBANKS AND THEIR CONNECTION TO HUMAN
SUBJECT RESEARCH ..................................................... 642
INFORMED CONSENT .................................................... 646
A. Generally ..................................................................... 646
B. Two Standards of Informed Consent .......................... 649
1. Physician-Based Standard..................................... 650
2. Patient-Based Standard ........................................ 654
C. Informed Consent and Research Involving Human
Biological Specimens ................................................... 658
THE FIDUCIARY RELATIONSHIP BETWEEN
RESEARCHER AND HUMAN SUBJECT ....................... 662
A NEED FOR LEGISLATIVE REFORM ......................... 669
A. Amend the Common Rule ........................................... 670
B. Critique of Informed Consent Standards With
Respect to Research With Human Biological
Materials ..................................................................... 679
CONCLUSION .................................................................. 682
I. INTRODUCTION
Cells and tissue samples are often extracted from our bodies
in the course of routine medical testing and physician visits.1 For
J.D. Candidate, Expected May 2013 from the Charleston School of Law;
B.S.N., Medical University of South Carolina, 2007; B.A., University of Notre
Dame, 2005. First and foremost, I would like to thank Professor Sheila
Scheuerman for her constant guidance, support, and availability, all of which
made this Note possible. I would also like to thank Professor Andrew McLester
*
635
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[Volume VI
example, we commonly have blood drawn for testing during a
standard physical.2 Additionally, since 1965, hospitals routinely
collect newborn blood samples via a heel stick to screen for
treatable disorders,3 and in 2008, President Bush signed into law
a bill allowing the federal government to screen the DNA of all
babies born in the United States.4 When these biospecimens are
extracted, most patients do not think twice about what happens
to these cells beyond the diagnostic or therapeutic use for one’s
own illness or affliction.5 However, in many cases, health care
professionals retain these biospecimens, which become the basis
for new cell lines or research studies.6 Knowing this, would you
be upset if your physician failed to tell you that he might profit
from the cells extracted from your body that were allegedly
extracted solely for your benefit? Suppose you discovered that
researchers created a new cell line using the tissue they
extracted during a gynecological biopsy to diagnose cancer;
suppose further this cell line became extremely valuable to
research, and was still being sold for profit sixty years later.7
Would it then upset you to know that researchers and physicians
were profiting from a product created with your cells, while you
were unaware that the cell line existed, much less that it had
been bought and sold by the billions?8
for teaching me the art of legal writing and for being a wonderful legal mentor,
as well as Professor Mary Kay Schwemmer for helping me arrive at an
interesting and current health law topic. To my family, thank you for not only
affording me the opportunity of a legal education, but also for patiently
supporting me throughout this process. Finally, many thanks to my friends for
their constant encouragement, and to the members of the Charleston Law
Review for their hard work and time spent helping to make this Note a success.
1. See REBECCA SKLOOT, THE IMMORTAL LIFE OF HENRIETTA LACKS 315
(2010).
2. See Lori Andrews, The Battle Over the Body, TRIAL, Oct. 2006, at 22,
26.
3. Katherine Drabiak-Syed, Legal Regulation of Banking Newborn Blood
Spots for Research: How Bearder and Beleno Resolved the Question of Consent,
11 HOUS. J. HEALTH L. & POL’Y 1, 1 (2011).
4. See Newborn Screening Saves Lives Act of 2007, 42 U.S.C.A. § 300b14(a)–(b) (West 2011).
5. See Andrews, supra note 2, at 26.
6. Id.
7. See generally SKLOOT, supra note 1.
8. See generally id.
636
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Such is the case of Henrietta Lacks.9 Born in 1920, Henrietta
Lacks was an impoverished African American woman in rural
Virginia;10 that is, until she was diagnosed with cervical cancer
in 1951.11 At the age of thirty, after giving birth to five children,
Lacks developed gynecological bleeding and sought care at Johns
Hopkins Hospital in Baltimore, Maryland.12 Hopkins, founded as
a charity hospital, was the only major hospital in the area that
would treat black patients.13 There, Lacks’s physician initiated
radium treatment, the standard of care at that time,14 in which a
physician would sew tubes of radium to an anesthetized patient’s
cervix.15 Lacks’s physician removed a small piece of Lacks’s
normal cervical tissue in addition to another small piece of her
cervical cancer tissue without her knowledge or consent, put
them in a test tube, and sent them to George Gey.16 Gey, a
physician trained at Hopkins, focused his career on identifying
cancer’s cause and cure via experimentation with malignant cells
outside the body.17 Until the day Lacks’s cells were brought to his
laboratory, Gey had been unsuccessful.18 However, Lacks’s
tissues not only survived but actually thrived in culture,19
becoming the first “immortal” cell line, or “continuously dividing
line of cells all descended from one original sample” that
constantly regenerates and never dies.20 On the day Lacks died,
Gey announced on national television that a breakthrough had
occurred in cancer research.21 He held up the vial of cells and
introduced to the world for the first time “HeLa” cells, so named
for the first two letters of the first and last name of their human
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
See generally id.
Id. at 18.
Id. at 31.
Id. at 14–15.
Id. at 15.
Id. at 31–32.
Id. at 33.
Id.
Id. at 30.
Id.
Id. at 40.
Id. at 30.
Rebecca Skloot, Henrietta’s Dance, JOHNS HOPKINS MAG., Apr. 2000,
available at http://www.jhu.edu/jhumag/0400web/01.html [hereinafter Henrietta’s Dance].
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source, Henrietta Lacks.22
At the time Lacks’s cells were taken, neither Gey nor others
in medicine thought it necessary to obtain a patient’s permission
before retrieving tissue samples.23 Similarly, researchers did not
deem it necessary to inform family members about the tissue
sample’s fate, even if that fate involved a scientific breakthrough
derived from their deceased loved one’s tissues.24 In fact, Lacks’s
family members did not discover that Henrietta was the source of
the highly famed “HeLa” cells until nearly twenty-five years after
her death, even then, the news came from a friend during a social
luncheon and not from the researchers or their predecessors at
Hopkins.25 The Lacks family was distressed by the unwanted
media attention that accompanied the revelation of Henrietta’s
identity, and they were angry that no one had asked Henrietta or
her family whether her cells could be removed for research.26
Later actions by Hopkins researchers only added to the
feelings of deception and exploitation that the Lacks children
experienced.27 In an effort to remedy what had become a serious
obstacle to using HeLa cells in research,28 the Hopkins
researchers sought to identify several different genetic markers
in order to isolate and identify Henrietta’s cells.29 To do so, the
researchers needed samples of DNA similar to that of the HeLa
cells; they turned to Henrietta’s children, who had received half
22. Id.
23. Id. Ruth Faden, executive director of the Johns Hopkins Berman
Institute for Bioethics, described the lack of informed consent in Henrietta
Lacks’s case as “a sad commentary on how the biomedical research community
thought about research in the 1950s. But it was not at all uncommon for
physicians to conduct research on patients without their knowledge or consent.
That doesn’t make it right. It certainly wasn’t right. It was also unfortunately
common.” Id.
24. See id.; see also Gail Javitt, Why Not Take All of Me? Reflections on The
Immortal Life of Henrietta Lacks and the Status of Participants in Research
Using Human Specimens, 11 MINN. J.L. SCI. & TECH. 713, 721 (2010) (discussing
the modern debate over researchers’ obligation to communicate clearly within
tissue contribution).
25. SKLOOT, supra note 1, at 179–80.
26. See id. at 193.
27. See id. at 184–90.
28. Id. at 181. HeLa cells were contaminating other cell cultures such that
it was impossible to identify which cells were Lacks’s and which were not. Id.
29. Id. at 181–82.
638
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of their genetic material from her.30 Although the researchers
believed the family members understood the reason that they
were being asked to donate blood,31 the Lacks children actually
thought they were providing blood to determine if they would
develop cancer as their mother had.32 Despite the confusion the
Lacks children experienced, no one in Henrietta’s immediate
family, except for her daughter, Deborah, seemed particularly
upset about the use of Henrietta’s cells.33 Henrietta’s son, Sonny,
said, “[as] [l]ong as it’s helpin[g] somebody,” it was alright that
the cells were being used.34 However, when Sonny and his
brothers read that tiny vials of HeLa cells were available for
public purchase at the cost of approximately $25 a vial, they
resented Gey and Hopkins for stealing their mother’s cells and
making millions of dollars selling them.35 Today, Deborah’s
outrage regarding the unauthorized use of her mother’s cells
lingers, as evidenced by recent conversations with Rebecca
Skloot, the author of The Immortal Life of Henrietta Lacks: “If
our mother[‘s] cells [did] so much for medicine, [why can’t] her
family [] afford to see [any] doctors? . . . People got rich off my
mother without us even knowin[g] about them takin[g] her cells,
now we don’t get a dime.”36
Although there is no record of Hopkins or Gey profiting from
the sale of HeLa cells,37 many biobanks and biotech companies
have.38 For instance, Invitrogen currently sells HeLa products
ranging in cost from $100 to almost $10,000 per vial.39 Moreover,
the U.S. Patent and Trademark Office has more than seventeen
thousand patents registered involving HeLa cells.40
Today, no researcher would consider publishing a person’s
name with any of that person’s genetic information because the
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
Id. at 182–83.
Id. at 183.
Id. at 184–89.
Id. at 193.
Id.
Id.
Id. at 9.
Id. at 194.
Id.
Id.
Id.
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scientific world knows how much can be deduced from DNA.41
Publishing personal medical information like this could violate
federal regulations42 and result in significant fines and
imprisonment.43 Though void of any identifying information,
biospecimens, like the tissue sample extracted from Henrietta
Lacks and the blood samples taken from her children, continue to
be stored in biorepositories and used for research—often
unbeknownst to the individual from whom the biospecimen was
taken.44 Justice Mosk, in his dissent in Moore v. Regents of the
University of California, recognized the dangers of using such
biospecimens in the absence of valid consent:
[O]ur society acknowledges a profound ethical imperative to
respect the human body as the physical and temporal
expression of the unique human persona. One manifestation of
that respect is our prohibition against direct abuse of the body
by . . . its economic exploitation for the sole benefit of another
person. The most abhorrent form of such exploitation, of
course, was the institution of slavery. Lesser forms, such as
indentured servitude or even debtor’s prison, have also
disappeared. Yet their specter haunts the laboratories and
boardrooms of today’s biotechnological research-industrial
complex. It arises wherever scientists or industrialists claim,
as defendants claim here, the right to appropriate and exploit a
patient’s tissue for their sole economic benefit—the right, in
other words, to freely mine or harvest valuable physical
properties of the patient’s body: Research with human cells
that results in significant economic gain for the researcher and
no gain for the patient offends the traditional mores of our
society in a manner impossible to quantify. Such research
tends to treat the human body as a commodity—a means to a
profitable end. The dignity and sanctity with which we regard
the human whole, body as well as mind and soul, are absent
when we allow researchers to further their own interests
without the patient’s participation by using a patient’s cells as
41. See Health Insurance Portability and Accountability Act (HIPAA), 42
U.S.C. § 1320d-2(d)(2) (2006).
42. See id.; see also Genetic Information Nondiscrimination Act of 2008, 42
U.S.C.A. § 1320d-9(a)–(d) (West 2011) (protecting individuals from losing their
health insurance or employment due to genetic discrimination).
43. SKLOOT, supra note 1, at 198.
44. Andrews, supra note 2, at 26.
640
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Informed Consent
the basis for a marketable product.45
Justice Mosk’s analogy of human subject research without a
patient’s consent to slavery appears extreme on its face, but at
the core of both is abuse of the body by economic exploitation for
the sole benefit of another person.46 In essence, when a
researcher uses an individual’s cells for profit without the
individual’s knowledge or consent, he has exploited the bodily
integrity of another for profit.47 Even though a researcher is not
taking a vital organ, but instead using tissue scraps a patient
parted with voluntarily, it still involves someone taking a part of
the patient.48 Understandably, many individuals have a strong
sense of ownership when it comes to their bodies but, to date, “a
feeling of ownership”49 does not give rise to a legal right.50
Rather, no case law has fully elucidated whether one has the
right to control his or her tissues once they are excised from the
body.51
This note briefly describes the story of Henrietta Lacks to
illustrate the beginnings of biotechnology and the early informed
consent problems therein. Part II offers an overview of biobanks,
the growth of biotechnology, and public perception regarding
research with human tissues. Part III discusses the purpose,
history, and current legal framework of the doctrine of informed
consent; Part III also examines the relevant case law pertaining
to informed consent and human subject research. Part IV
analyzes the fiduciary relationship between researchers and
human subjects and its implications on informed consent.
Finally, Part V proposes revisions to the federal research
regulations that will support the continued development of
biotechnology, while protecting the human contributors of the
biospecimens that are necessary for future research.
45. 793 P.2d 479, 515-16 (Cal. 1990) (Mosk, J., dissenting) (citations
omitted) (internal quotation marks omitted).
46. Id.
47. Id.
48. SKLOOT, supra note 1, at 316–17.
49. Id. at 317; see also Wash. Univ. v. Catalona (Catalona II), 490 F.3d
667, 674–77 (8th Cir. 2007) (holding an individual does not retain an ownership
interest in any biological materials voluntarily donated).
50. SKLOOT, supra note 1, at 317.
51. Id.
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II. BIOBANKS AND THEIR CONNECTION TO HUMAN
SUBJECT RESEARCH
A biobank, or a biorepository, is a place that “collects, stores,
processes and distributes biological materials and the data
associated with those materials. Typically, [the] ‘biological
materials’ are human biospecimens—such as tissue or blood—
and the ‘data’ are the clinical information pertaining to the donor
of that biospecimen.”52 According to the National Bioethics
Advisory Commission, United States biobanks contain more than
282 million identifiable biospecimens derived from over 176
million individuals.53 Furthermore, biobanks are continuing to
expand at a rate of at least 20 million new specimens per year.54
In the United States, several considerable biorepositories fall
under the auspices of large academic institutions, such as
Vanderbilt University Medical Center,55 the Marshfield Clinic,56
and Northwestern University.57 Kaiser Permanente, the largest
nonprofit private health care provider in the United States,58 also
maintains a biorepository and actively recruits participants to
52. Biobank Information Sites, LABAUTOPEDIA: THE SLAS KNOWLEDGE
NETWORK, http://labautopedia.com/mw/index.php/Biobank_information_sites#A
_compilation_of_external_resources_on_biobanks (last visited Oct. 21, 2011); see
also Javitt, supra note 24, at 721.
53. NAT’L BIOETHICS ADVISORY COMM’N, RESEARCH INVOLVING HUMAN
BIOLOGICAL MATERIALS: ETHICAL ISSUES AND POLICY GUIDANCE 1 (1999),
available at http://bioethics.georgetown.edu/nbac/hbm.pdf; see also Lori B.
Andrews, Harnessing the Benefits of Biobanks, 33 J.L. MED. & ETHICS 22, 23
(2005) [hereinafter Harnessing the Benefits].
54. NAT’L BIOETHICS ADVISORY COMM’N, supra note 53, at 1; see also
Harnessing the Benefits, supra note 53, at 23.
55. Vanderbilt BioVU: Vanderbilt’s DNA Databank , DEP’T OF BIOMED.
INFORMATICS, VANDERBILT UNIV. MED. CTR., http://dbmi.mc.vanderbilt.edu/
research/dnadatabank.html (last visited Oct. 21, 2011). As of early 2009,
Vanderbilt’s biobank, which is known as “BioVU,” contained over 50,000 DNA
samples, with approximately 700 new samples added each week. Id.
56. See Genetics Perspectives on Policy Seminar, Genetic Biobanks:
Deposits, Withdrawals, and Consumer Protection 4 (Dec. 9, 2008) (transcript of
Nat’l Press Club panel discussion), available at http://www.dnapolicy.org/
resources/GenePOPS11transcriptedited.pdf.
57. See id.
58. Fast Facts About Kaiser Permanente, KAISER PERMANENTE,
http://xnet.kp.org/newscenter/aboutkp/fastfacts.html (last visited Oct. 21, 2011).
According to the company’s website, Kaiser serves more than 8.9 million
members. Id.
642
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Informed Consent
contribute samples.59 This particular biobank contained 40,000
DNA samples from its members as of early 2009 and is notable
for the depth of information it contains, combining participants’
DNA samples with health information and other environmental
exposures.60 In addition to these conventional biorepositories,
“[s]ome biobanks have been created indirectly, when, for
example, the pathology department of a hospital stores biopsy
samples from cancer patients or the criminal justice system
keeps blood samples collected from felons for DNA databases.”61
Due to the wide variety of pathology samples, forensic samples,
and public health samples collected, it is not an overstatement to
say that “virtually everyone has his or her tissue ‘on file.’”62
Today, tissue samples are a capital resource.63 Accordingly,
the growing demand for human tissue samples has sparked an
increase in the value of such samples.64 In one instance, the
College of American Pathologists, explained at their national
meeting, that medical establishments routinely sell unknowing
patients’ tissue to biotechnology companies.65 The most common
rationale seems to be that of “finders keepers,” where
pathologists or physicians with access to human tissue do not
hesitate to keep samples for their own use, beyond the purposes
for which they collected the tissue.66 Alternatively, a researcher
may select and order through a catalogue specific cell lines for
diseases or other qualities particular to their research.67 For
59. Susan J. Landers, Kaiser Fills a Biobank With a Wealth of Data, AM.
MED. NEWS (Jan. 13, 2009), http://www.ama-assn.org/amednews/2009/01/12/
hlsc0113.htm.
60. Id.
61. Harnessing the Benefits, supra note 53, at 23.
62. Id.
63. Id.
64. Id.
65. Id.
66. See generally SKLOOT, supra note 1 (discussing this point of view while
specifically describing its effect on the life of Henrietta Lacks); cf. LORI B.
ANDREWS & DOROTHY NELKIN, BODY BAZAAR: THE MARKET FOR HUMAN TISSUE IN
THIS BIOTECHNOLOGY AGE 9–11 (2001) (discussing the postmortem study of
Albert Einstein’s brain without his consent); Sandra F. Witelson et al., The
Exceptional Brain of Albert Einstein, 353 LANCET 2149, 2149–50 (1999) (same).
67. Harnessing the Benefits, supra note 53, at 23.
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instance, the entries in American Tissue Culture Catalogue,68
and its foreign counterparts,69 describe in compendious style the
person whose tissue is for sale: “CRL-5867—a 49 year-old black
female with cancer of the lymph node. JCR B0068—a 14 weekold Japanese fetus who died of cytomegalovirus.”70 While
thousands of individuals are listed within the catalogue, it is
unlikely that the majority of them or their families realize that
they are part of this elite market.71
To date, studies have shown significant public support for the
goals of biobank research.72 Indeed, most members of the public
would agree to contribute tissue samples for research, at least
under some conditions.73 Nevertheless, significant public concern
persists about protecting the privacy of information derived from
tissue samples as well as medical information that is included
about them as part of the research.74 Additionally, the public
remains interested in receiving information from research
conducted with its tissues if it could be relevant to one’s health
and in having a choice with respect to what information they
68. AMERICAN TISSUE CULTURE CATALOGUE, http://www.atcc.org (last
visited Feb. 1, 2012).
69. See, e.g., WORLD DATA CENTRE FOR MICROORGANISMS, http://refs.
wdcm.org/home.htm (last visited Feb. 1, 2012).
70. Harnessing the Benefits, supra note 53, at 23; see also Product
Description: Cell Biology – CRL-5867, AMERICAN TISSUE CULTURE CATALOGUE,
http://www.atcc.org/ATCCAdvancedCatalogSearch/ProductDetails/tabid/452/De
fault.aspx?ATCCNum=CRL-5867&Template=cellBiology (last visited Feb. 1,
2012) (providing an example of a cell tissue for sale).
71. Harnessing the Benefits, supra note 53, at 23. “John Moore’s cells are
for sale as CRL-8066; a plasmid containing Moore’s DNA sequence that codes
for colony stimulating factor is sold as ATCC 39754.” Id. at 28 n.11.
72. See SHAWNA WILLIAMS ET AL., JOHNS HOPKINS UNIV., GENETICS AND PUB.
POLICY CTR., THE GENETICS TOWN HALL: PUBLIC OPINION ABOUT RESEARCH ON
GENES, ENVIRONMENT, AND HEALTH (2008), available at http://www.
dnapolicy.org/images/reportpdfs/2009PCPTownHalls.pdf; David Kaufman et al.,
Veterans’ Attitudes Regarding a Database for Genomic Research, 11 GENETICS
MED. 329, 331 (2009) [hereinafter Veterans’ Attitudes].
73. See WILLIAMS ET AL., supra note 72; David J. Kaufman et al., Public
Opinion About the Importance of Privacy in Biobank Research, 85 AM. J. HUM.
GENETICS 643, 643 (2009) [hereinafter Public Opinion]; Veterans’ Attitudes,
supra note 72, at 335.
74. WILLIAMS ET AL., supra note 72, at 8; Public Opinion, supra note 73, at
643.
644
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Informed Consent
receive.75 In a study conducted by the Genetics and Public Policy
Center at Johns Hopkins University in 2007,76 nearly half of the
members of the public surveyed expressed a preference that
researchers obtain consent at the outset of all research to be
performed and not prior to each individual research study.77
Proponents of this type of blanket consent recognized the fact
that allowing research participants selectively to choose which
types of research they would consent to might potentially
compromise the ability to conduct the research or at least make it
more difficult.78 Conversely, a considerable minority indicated a
preference for researchers to obtain separate consent for each
project undertaken with their samples.79
Throughout the 2007 study, the term “contract” routinely
arose in discussing study participation,80 and “focus group
members viewed a contract as a binding agreement between
participants and researchers and did not view it simply as
participants’ agreement to participate.”81 Moreover, participants
delineated specific conditions they believed should be included in
the contract between researchers and participants, including
what specific samples would be collected, how they would be used
in the study, who would have access to results from the study,
what would happen to the samples and data at the termination of
the study, and what would happen if terms of the contract were
breached.82 The Center concluded that the focus group members’
continued use of the word “contract” indicated the public’s
understanding that that there are or should be reciprocal
75. WILLIAMS ET AL., supra note 72, at 9; Juli Murphy et al., Public
Expectations for Return of Results from Large-Cohort Genetic Research, 8 AM. J.
BIOETHICS 36, 36–41 (2008) [hereinafter Public Expectations].
76. Results from this study were reported in a number of publications. See,
e.g., Public Opinion, supra note 73, at 645–49; Juli Murphy et al., Informed
Perspectives on Health: Public Perspectives on Informed Consent for Biobanking,
99 AM. J. PUB. HEALTH 2128, 2129–32 (2009) [hereinafter Informed Perspectives
on Health]; Murphy et al., Public Expectations, supra note 75, at 38.
77. Informed Perspectives on Health, supra note 76, at 2131.
78. Id.
79. Id.
80. Id.
81. Id. at 2132.
82. Id.
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obligations between researchers and participants.83
III. INFORMED CONSENT
A. Generally
The legal foundation for informed consent stems mainly from
basic principles of medical ethics and human rights.84 Patient
autonomy is the fundamental tenet of medical ethics.85 Selfdetermination is the branch of autonomy most often linked to
informed consent and health care, such that decisions relating to
health care come freely from an autonomous agent who
appreciates the facts and can use practical reasoning to make a
decision.86 Physicians have a duty to respect the right of patients
to have adequate knowledge about their medical condition and
treatment options so that they are free to make autonomous
medical decisions.87 Additionally, physicians have an obligation
to act with beneficence toward their patients.88 To act with
beneficence, practicing physicians must act only when the
benefits of treatment justify the associated risks and costs.89
However, beneficence must be restrained by patient autonomy.90
While physicians strive to deliver the care they believe to be best
for the patient, ultimately practitioners must yield to a patient’s
personal wishes regardless of if those wishes contradict the
83. Id. at 2133.
84. Jaime Staples King & Benjamin W. Moulton, Rethinking Informed
Consent: The Case for Shared Medical Decision-Making, 32 AM. J.L. & MED. 429,
434 (2006).
85. Id. at 435.
86. Id. (citing Rebecca Kukla, Conscientious Autonomy: Displacing
Decisions in Health Care, 35 HASTINGS CTR. REP. 34, 35 (2005)).
87. Id. Patients may also freely withdraw from treatment. Prince v.
Esposito, 628 S.E.2d 601 (Ga. Ct. App. 2006). In order to constitute a
withdrawal of a patient’s consent to medical treatment, the patient expressly
must have acted or verbalized that he wished to withdraw consent such that no
reasonable person, in light of all the circumstances, would question whether
consent was withdrawn or not. Id. at 604–05.
88. King & Moulton, supra note 84, at 435 (citing TOM L. BEAUCHAMP &
JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 12, 166 (5th ed. 2001)).
89. Id. at 436.
90. Id. (citing BEAUCHAMP & CHILDRESS, supra note 88, at 176).
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practitioner’s recommendation.91
The requirement of consent to medical treatment initially
arose from the notion that a competent person has the right to
make decisions with respect to his or her own body.92 In
Schloendorff v. Society of New York Hospital, Justice Cardozo
wrote, “Every human being of adult years and sound mind has a
right to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient’s consent
commits an assault, for which he is liable in damages.”93 Despite
a patient’s absolute right to prevent unauthorized intrusions and
treatments, he may recover damages under lack of informed
consent theory only for those intrusions to which the patient
would not have consented had he been adequately informed.94
A physician’s failure to obtain a patient’s informed consent
can lead to two different causes of action: battery and
negligence.95 When a doctor obtains patient consent for one form
of treatment and subsequently performs a considerably different
treatment for which he did not obtain patient consent, a patient
may file a claim of battery.96 For example, in Mohr v. Williams,
the plaintiff patient consented to an operation on her right ear,
but the defendant surgeon operated on her left ear as well.97 The
plaintiff sued the surgeon for assault and battery based on a lack
of consent.98 The court recognized a battery cause of action,
emphasizing a patient’s “right to himself” as a “free citizen’s first
and greatest right,” and that this right prohibited the surgeon
from violating “the bodily integrity of his patient” without his
91. Id. (citing Mark Parascandola et al., Patient Autonomy and the
Challenge of Clinical Uncertainty, 12 KENNEDY INST. ETHICS J. 245, 248 (2002)).
92. Lugenbuhl v. Dowling, 701 So. 2d 447, 450 (La. 1997).
93. 105 N.E. 92, 93 (N.Y. 1914).
94. Before a physician can be held liable for any injury to a patient arising
out of his treatment, nontreatment, or failure to obtain informed consent of the
patient, the relationship between physician and patient and the manner of its
creation must be proven. Braun v. Riel, 40 S.W.2d 621, 622 (Mo. 1931).
95. Cobbs v. Grant, 502 P.2d 1, 7 (Cal. 1972).
96. Id. (citing Berkey v. Anderson, 1 Cal. App. 3d 790, 803 (Ct. App. 1969)
(alleging consent to allow physician to perform a procedure no more complicated
than the electromyograms plaintiff had previously undergone, when actual
procedure was a myelogram involving a spinal puncture)).
97. 104 N.W. 12, 13 (Minn. 1905).
98. Id.
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knowledge and consent.99
However, when an undisclosed risk actualizes, the occurrence
of which was not a fundamental part of the procedure but simply
a known risk, courts are divided as to whether this constitutes a
battery or if it is negligence.100 In Scott v. Wilson, for example,
the plaintiff patient consented to ear surgery by the defendant
surgeon.101 The plaintiff, however, alleged that the surgeon did
not inform him of the risk of a complete loss of hearing in the
affected ear.102 After the patient lost all hearing in his left ear,
he sued the surgeon for failure to reasonably disclose risks
incidental to the surgery performed.103 Although the trial court
directed a verdict for the physician,104 the Texas Court of Appeals
reversed, holding that the patient’s consent was void unless the
physician had informed him that he potentially could lose all
hearing.105 If the physician did not have the patient’s informed
consent to operate on him—including consent in light of the fact
that the patient could lose all hearing in the ear as a result of the
operation—he would be guilty of assault and battery on the
patient and liable for the damages caused by the surgery.106
Although the earliest cases treated this situation as a matter
99. Id. at 14.
100. Cobbs, 502 P.2d at 7 (citing Gray v. Grunnagle, 223 A.2d 663 (Pa. 1966)
(failure to warn a patient about the inherent risk or permanent paralysis in
spinal operation constitutes battery) and Natanson v. Kline, 354 P.2d 670 (Kan.
1960) (radiation treatment produced a severe burn and physician’s failure to
disclose the hazards of proposed treatment to patient constitutes negligence)).
In Mississippi, a physician that performs any procedure on a patient, no matter
how minimal, without the patient’s informed consent is liable for battery. Fox v.
Smith, 594 So. 2d 596, 604 (Miss. 1992). This rule reflects Mississippi’s respect
for an individual’s right to be free from unwanted bodily intrusions regardless
of intention, and advocates the right to privacy recognized by both statute and
the state constitution. Id.; see also Angela R. Holder, Physician’s Failure to
Obtain Informed Consent to Innovative Practice or Medical Research, in 15 AM.
JUR. PROOF OF FACTS 2D 711 Informed Consent in Standard Practice § 2
(originally published in 1978, database updated July 2010) (providing examples
of when even the failure to explain a viable alternative was held to be
negligence).
101. 396 S.W.2d 532, 535 (Tex. Civ. App. 1965).
102. Id. at 533.
103. Id.
104. Id.
105. Id. at 535.
106. Id.
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of debasing the consent so that there was liability for battery,107
beginning with Natanson v. Kline,108 courts began to recognize
that debasing consent is actually a matter of the standard of
professional conduct.109 Accordingly, the prevailing view today is
that breach of informed consent claims qualify as negligence.110
For instance, in Natanson, the court recognized a negligence
claim against a physician where the patient suffered a severe
burn from a radiation treatment, which the physician had failed
to disclose as a risk.111
B. Two Standards of Informed Consent
Two standards exist for determining the information
necessary for informed consent: the physician-based standard,
effective in twenty-five states, and the patient-based standard,
effective in twenty-three states and in the District of Columbia.112
Both standards rely on certain assumptions including: that the
average reasonable patient exists, that certain information
should or should not be material to the patient’s decision to
undergo medical treatment, and that the reasonable average
patient would be able to comprehend the information
communicated.113 However, the standards are differentiated in
that the physician-based standard is based on the needs of the
objective or reasonable patient, while the patient-based standard
is more patient-centered, tailored to the needs of the subjective
patient who will actually undergo the procedure.114
107. See, e.g., Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972) (citing WILLIAM L.
PROSSER, LAW OF TORTS 165–66 (4th ed. 1971)).
108. 354 P.2d 670 (Kan. 1960).
109. Cobbs, 502 P.2d at 8 (citing WILLIAM L. PROSSER, LAW OF TORTS 165–66
(4th ed. 1971)).
110. Id.
111. Natanson v. Kline, 354 P.2d 670, 673–74 (Kan. 1960).
112. King & Moulton, supra note 84, at 430. “Although each state
individually interprets each standard, they can be clearly divided into the two
groups based on their language and intent, with the exception of New Mexico
and Minnesota, which have hybrid informed consent standards.” Id. at 430 n.2.
Although the language of the informed consent standards varies from state to
state, the standards generally fall into these two categories of physician and
patient-based standards. Id. at 430.
113. Id.
114. Id. at 443.
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1. Physician-Based Standard
The physician-based standard mandates that practitioners
inform their patients to the same extent as that of a reasonably
prudent practitioner of the same skill would disclose.115 Under
this standard, whether and to what extent a physician has a duty
to disclose a particular risk must be determined by expert
medical testimony establishing the prevailing standard of
practice and the physician’s alleged departure from it.116 If a
physician follows the standard, accepted procedure for diagnosis
or treatment of any illness, he will not be liable for negligence
regardless of the treatment outcome.117 Jurisdictions that follow
the physician-based standard usually require the plaintiff to offer
medical testimony to establish: (1) that a reasonable medical
practitioner in the same or similar community would disclose
this information, and (2) that the defendant practitioner did not
comply with this community standard.118
A physician-based standard promotes optimal medical
practice because a physician’s primary duty is to advance his
patients’ best interests. Adopting this standard absolves the risk
that an uninformed lay jury will later conclude the physician
acted improperly.119 On the other hand, a patient-centered
115. Brietta Clark, Using Law to Fight a Silent Epidemic: The Role of
Health Literacy in Health Care Access, Quality, and Cost, 20 ANNALS HEALTH L.
253, 285–86 (2011).
116. See Woolley v. Henderson, 418 A.2d 1123, 1129 (Me. 1980); see also
Roberts v. Young, 119 N.W.2d 627, 630 (Mich. 1963) (suggesting that whether
the physician should have discussed all of the possible results of a medical
procedure with the patient is a matter “determined in accordance with the
general practice customarily observed by practitioners in good standing of [a
physician’s] school of treatment”). Compare Collins v. Itoh, 503 P.2d 36, 40
(Mont. 1972) (holding the duty to disclose was limited to those disclosures
which a reasonable practitioner would make under similar circumstances, but
distinguishing that whether the physician has a duty to disclose depends on the
facts of each case, thus “no hard and fast rule can be stated as to what should
be disclosed and what can be withheld”), with Folger v. Corbett, 394 A.2d 63,
63–64 (N.H. 1978) (holding that whether a physician uses ordinary care must
generally depend on expert testimony (citing April v. Peront, 188 A. 457, 459
(N.H. 1936)).
117. Holder, supra note 100, at § 1.
118. Fuller v. Starnes, 597 S.W.2d 88, 90 (Ark. 1980).
119. See, e.g., Woolley, 418 A.2d at 1131 (dispensing with expert medical
testimony to establish the existence and extent of the disclosure duty in a given
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standard forces physicians to spend unnecessary time discussing
every possible risk with their patients, thereby jeopardizing the
physician’s flexibility in deciding on the best form of treatment.120
As a result, a physician-based standard prevails by a slight
majority.121
Natanson v. Kline122 was one of the first cases to recognize a
negligence cause of action arising out of a physician’s breach of
duty to disclose enough pertinent information to his patient to
give the patient “informed consent.”123 In Natanson, a breast
cancer patient, following a radical mastectomy, underwent
case may create “the potential danger that a jury, composed of laymen and
gifted with the benefit of hindsight, will divine the breach of a disclosure
obligation largely on the basis of the unfortunate result.”).
120. See Truman v. Thomas, 611 P.2d 902, 911 (Cal. 1980) (Clark, J.,
dissenting).
121. King & Moulton, supra note 84, at 430. “While each state may have its
own basic interpretation of each standard, they can be easily divided into the
two groups based on their language and intent, with the exception of New
Mexico and Minnesota, which have hybrid standards.” Id. at n.2. Following is
a list of the twenty-five states that use a physician-based standard, as well as
the key case from that state: Alabama (Fain v. Smith, 479 So. 2d 1150, 1151
(Ala. 1985)); Arizona (Riedisser v. Nelson, 534 P.2d 1052, 1054–55 (Ariz. 1975));
Arkansas (Fuller v. Starnes, 597 S.W.2d 88, 90 (Ark. 1980)); Colorado (Bloskas
v. Murray, 646 P.2d 907, 912–13 (Colo. 1982)); Delaware (Coleman v. Garrison,
327 A.2d 757, 762–63 (Del. Super. Ct. 1974), aff’d, 349 A.2d 8, 14 (1975));
Florida (Gassman v. United States, 589 F. Supp. 1534, 1544–45 (D. Fla. 1984));
Idaho (Sherwood v. Carter, 805 P.2d 452, 457, 462 (Idaho 1991)); Illinois
(Ramos v. Pyati, 534 N.E.2d 472, 476–77 (Ill. App. Ct. 1989)); Indiana
(Culbertson v. Mernitz, 602 N.E.2d 98, 102–04 (Ind. 1992)); Kansas (Natanson
v. Kline, 350 P.2d 1093, 1106 (Kan. 1960)); Kentucky (Holton v. Pfingst, 534
S.W.2d 786, 788 (Ky. 1976)); Maine (Ouellette v. Mehalic, 534 A.2d 1331, 1332
(Me. 1988)); Michigan (Rice v. Jaskolski, 313 N.W.2d 893, 896 (Mich. 1981));
Missouri (Aiken v. Clary, 396 S.W.2d 668, 673, 675 (Mo. 1965) (per curiam));
Montana (Llera v. Wisner, 557 P.2d 805, 810 (Mont. 1976)); Nebraska
(Eccleston v. Chait, 492 N.W.2d 860, 864 (Neb. 1992)); Nevada (Smith v. Cotter,
810 P.2d 1204, 1207 (Nev. 1991)); New Hampshire (Smith v. Cote, 513 A.2d 341,
346–47 (N.H. 1986)); New York (Shinn v. St. James Mercy Hosp., 675 F. Supp.
94, 99 (W.D.N.Y. 1987)); North Carolina (Foard v. Jarman, 387 S.E.2d 162, 164
(N.C. 1990)); South Carolina (Hook v. Rothstein, 316 S.E.2d 690, 698 (S.C. Ct.
App. 1984)); Tennessee (Cardwell v. Bechtol, 724 S.W.2d 739, 750 (Tenn. 1987));
Vermont (Perkins v. Windsor Hosp. Corp., 455 A.2d 810, 813 (Vt. 1982));
Virginia (Rizzo v. Schiller, 445 S.E.2d 153, 155–56 (Va. 1994)); Wyoming
(Roybal v. Bell, 778 P.2d 108, 112 (Wyo. 1989)). For a more thorough catalogue
of cases, see King & Moulton, supra note 84, at app. A.
122. 350 P.2d 1093 (Kan. 1960).
123. King & Moulton, supra note 84, at 439.
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radiation therapy at the mastectomy site and surrounding
areas.124 When the treatment destroyed her entire chest, skin,
cartilage, and bone, the patient filed a medical malpractice suit
against the radiologist and hospital.125 A jury returned a verdict
in favor of the radiologist and hospital, and the lower court
denied the patient’s motion for a new trial.126 On appeal, the
Kansas Supreme Court reversed in part because the radiologist
failed to warn the patient of the risks involved in radiation
therapy, thus, the patient could not be expected to know the
dangers of radiation unless informed by a doctor. 127 The Kansas
Supreme Court concluded that the lower court erred in refusing
to instruct the jury on a physician’s responsibility to obtain the
informed consent of the patient.128
Under the physician-based standard, the Natanson court
clarified the physician’s duty to disclose as “limited to those
disclosures which a reasonable medical practitioner would make
under the same or similar circumstances.”129 Moreover, the court
obligated physicians to “disclose and explain to the patient in
language as simple as necessary the nature of the ailment, the
nature of the proposed treatment, the probability of success or of
alternatives, and perhaps the risks of unfortunate results and
unforeseen conditions within the body.”130
Despite its legal precedence, the Natanson opinion did little
to elucidate physicians’ legal duties with regards to disclosure.131
In more recent cases, courts have defined the amount of
disclosure required to meet the legal standard of care.132 In
Tashman v. Gibbs, for example, the defendant physician had
provided obstetrical and gynecological care to the plaintiff
124.
125.
126.
127.
128.
129.
130.
131.
132.
Natanson, 350 P.2d at 1095.
Id. at 1095, 1097.
Id. at 1095.
Id. at 1107.
Id. at 1109.
Id. at 1106.
Id.
King & Moulton, supra note 84, at 441.
See, e.g., Tashman v. Gibbs, 556 S.E.2d 772, 777 (Va. 2002) (citing
Dickerson v. Fatehi, 484 S.E.2d 880, 881 (Va. 1997); Rogers v. Marrow, 413
S.E.2d 344, 346 (Va. 1992); and Raines v. Lutz, 341 S.E.2d 194, 196 (Va. 1986)).
652
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Informed Consent
patient for several years.133 After the delivery of her second child,
the patient developed a severe uterine and vaginal prolapse,
which the defendant physician treated with a total hysterectomy
and a sacrospinous procedure.134 After the surgery, the patient
began experiencing severe pain in her right hip, leg, and foot and
was unable to straighten her right leg or bear weight on it.135 She
also experienced numbness in her vaginal area.136 After
consulting with a neurologist, defendant physician performed a
second surgery to remove the sutures made during the
sacrospinous procedure.137 Although the patient’s level of pain
decreased, “[s]he ultimately was diagnosed with permanent
injury to her sciatic and pudendal nerves.”138 The patient filed a
medical malpractice action against the physician, alleging that
he negligently failed to obtain her “informed consent” for the
procedure because he did not notify her of the nature and risks of
the operation—namely the risk of nerve damage—or advise her
of any alternative treatments.139 The lower court denied
defendant physician’s motion to strike the patient’s informed
consent claim, and the jury returned a general verdict in favor of
the patient in the amount of $4,000,000.140 On appeal, the
Virginia Supreme Court reversed and remanded the trial court’s
judgment, finding the patient’s evidence on the issue of informed
consent claim insufficient.141 However, the court clearly defined
the current physician-based standard.142 The Tashman court held
that, for a medical malpractice action, the standard of care
ordinarily obligates physicians “to inform a patient of the
dangers of, possible negative consequences of, and alternatives to
a proposed medical treatment or procedure” to the same extent
that a “reasonably prudent practitioner in the same field of
133. Id. at 774.
134. Id. (“In a sacrospinous procedure, the prolapsed vagina is pulled back
into position and secured with sutures fixed to the sacrospinous ligament.”)
135. Id.
136. Id.
137. Id.
138. Id.
139. Id. at 775.
140. Id. at 777.
141. Id. at 779.
142. See id. at 777–79.
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practice or specialty in [that state would].”143 The court further
stated that, in a breach of informed consent case, the burden is
on the plaintiff to prove: (1) that “a reasonably prudent
practitioner in the same field of practice or specialty in [the
state]” would have provided the allegedly missing information,144
(2) that the patient would have forgone the treatment had he
been informed of that information,145 and (3) thus, “the
physician’s negligent omissions were a proximate cause of the
injury sustained.”146 This standard holds that if a “reasonably
prudent physician” would not provide the patient with any
information regarding the risks and benefits of the procedure,
then a total lack of disclosure would meet the standard of care.147
2. Patient-Based Standard
By contrast, the patient-based standard revolves around a
patient’s right to self-determination and the fiduciary duty
inherent in the doctor-patient relationship.148 Under this
standard, a physician must disclose all of the facts, risks, and
alternatives that a reasonable patient in a similar situation
would consider material in deciding whether to undergo medical
treatment.149 In determining whether a physician has breached
his duty to fully inform his patient, the standard of care is not
what a reasonable medical practitioner would have done in the
same situation, but rather, whether the physician fully disclosed
those risks which a reasonable patient would consider material
143. Id. at 777; see also King & Moulton, supra note 84, at 441 (explaining
that under the physician-based standard the scope of disclosure required to
meet the informed consent standard of care is relative to the actions of other
physicians).
144. Tashman, 556 S.E.2d at 777.
145. Id. at 779.
146. Id. at 778.
147. See id. at 777; see also Daniel Merenstein, Winners and Losers, 291
JAMA 15, 15 (2004) (relaying the facts of an unpublished trial in which a
patient was able to show the standard of care in the state was to order the test
without discussing it with the patient, and consequently, a physician was liable
for malpractice after informing the patient of the minimal risks thus causing
the patient to decline the test).
148. Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73, 78 (N.J.
2002) (citing Canterbury v. Spence, 464 F.2d 772, 781–82 (D.C. Cir. 1972)).
149. Cooper v. Roberts, 286 A.2d 647, 650 (Pa. Super. Ct. 1971).
654
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Informed Consent
in deciding whether to undergo treatment.150
The objective patient-based standard originated in the
seminal case Canterbury v. Spence.151 In Canterbury, a nineteenyear-old patient underwent surgery for severe back pain, which
resulted in complications and ultimate paralysis.152 The
physicians failed to warn the patient of the risk of paralysis
inherent in the procedure, and the patient sued for malpractice
and failure to fully disclose the risks necessary for the patient to
give informed consent to the procedure.153
The Canterbury court stressed objective patient preference:154
“The test for determining whether a particular peril must be
divulged is its materiality to the patient’s decision: all risks
potentially affecting the decision must be unmasked.”155
Materiality was determined objectively, and only those risks that
“a reasonable person, in what the physician knows or should
know to be the patient’s position, would be likely to attach
significance to” constituted a “material risk.”156 While this
objective patient-based standard departed from the physicianbased standard that the majority of courts exercised previously,
thereby moving towards patient autonomy,157 it failed to
acknowledge that patients value risks and benefits differently.158
Consequently, this standard is based on the needs of an objective
or reasonable patient instead of the subjective patient who
actually undergoes the treatment.159
A minority of jurisdictions, however, uses a subjective
patient-based standard derived from Cobbs v. Grant,160 which
requires a physician to consider a patient’s individual subjective
150.
151.
152.
153.
154.
155.
156.
Id. at 650–51.
464 F.2d 772 (D.C. Cir. 1972).
Id. at 776, 793.
Id. at 778.
Id. at 786–87.
Id.
Id. at 787 (quoting Jon R. Waltz & Tomas W. Scheuneman, Informed
Consent to Therapy, 64 NW. U. L. REV. 628, 640 (1970)).
157. See King & Moulton, supra note 84, at 443.
158. Id.
159. Id.
160. 502 P.2d 1 (Cal. 1972).
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fears and hopes.161 In Cobbs, the plaintiff patient was admitted to
the hospital for treatment of a duodenal ulcer.162 The defendant
surgeon was consulted and performed surgery to treat the
ulcer.163 Although the defendant surgeon explained the nature of
the operation to the plaintiff, he failed to discuss any of the
improbable, but possible, risks of the surgery.164 Due to
complications from the first surgery, the plaintiff patient
underwent two subsequent surgeries and ultimately had to have
fifty percent of his stomach removed.165 The patient brought a
medical malpractice suit against his surgeon, and the jury
returned a verdict in favor of the patient, from which the
physician appealed.166 The California Supreme Court reversed,
reasoning that it was impossible to determine whether the jury
based its decision on the surgeon’s negligence in performing the
operation or on his failure to fully inform the patient of the
surgical risks thereby negating plaintiff’s consent.167
The Cobbs court held that the patient’s right of self-decision
is the measure of a physician’s duty to inform.168 While a medical
doctor, being the expert, appreciates the risks inherent in the
treatment he is prescribing—the risks of a decision to forego the
treatment and the likelihood of a successful outcome of the
treatment—once the physician discloses this information, his
expert function has been performed.169 It is then up to the patient
to weigh the risks of the treatment against his subjective fears
and hopes, and this evaluation and decision is a nonmedical
judgment that only the patient can make.170 The Cobbs court held
that because the “weighing of these risks [i.e., those inherent in a
proposed procedure] against the individual subjective fears and
161. See generally King & Moulton, supra note 84 (noting that the
subjective patient-based standard remains largely an anomaly with only
Oklahoma and Oregon maintaining anything that resembles a subjective
informed consent requirement).
162. Cobbs, 502 P.2d at 4.
163. Id.
164. Id.
165. See id. at 4–5.
166. Id. at 5.
167. Id. at 5, 7.
168. Id. at 11.
169. Id. at 10.
170. Id.
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Informed Consent
hopes of the patient is not an expert skill[,]”171 the test “for
determining whether a potential peril must be divulged is its
materiality to the patient’s decision.”172
The current patient-based standard utilizes Canterbury’s
objective standard and requires a physician to disclose any
material risk.173 A material risk is one that a physician believes
that a reasonable person in the patient’s position “would be likely
to attach significance to . . . in deciding whether or not to forego
the proposed therapy.”174 Under this standard, to prevail in a
claim for breach of informed consent, a patient must prove: (1)
that the physician failed to provide information of a “material
risk,” (2) that the patient would not have undergone the
treatment had he been informed of this information, and (3) thus,
the physician’s omissions were the proximate cause of the
patient’s injuries.175 In Fletcher v. Medical University of South
Carolina, for example, the plaintiff patient underwent subclavian
bypass surgery to alleviate a blockage in the artery leading to her
left arm and suffered nerve damage and complications as a
result.176 The patient brought a medical malpractice claim
against the hospital alleging that the physician did not inform
her of the associated risks and that she would not have
undergone the surgical procedure had she known that the
procedure was not guaranteed to resolve her symptoms and that
these risks could materialize.177 The court remanded the
informed consent claim for a new trial,178 holding that it was a
matter for the jury to determine whether the evidence supported
a finding that the patient, using the reasonable person standard,
would not have proceeded with the surgery had she known of the
risks.179
171. Id.
172. Id. at 11 (citing Canterbury v. Spence, 464 F.2d 772, 786 (D.C. Cir.
1972)).
173.
174.
175.
176.
177.
178.
179.
King & Moulton, supra note 84; see Canterbury, 464 F.2d at 786–87.
Canterbury, 464 F.2d at 787.
See Scott v. Bradford, 606 P.2d 554, 559 (Okla. 1979).
702 S.E.2d 372, 373 (S.C. Ct. App. 2010).
Id. at 373–74.
Id. at 378.
Id. at 377–78.
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C. Informed Consent and Research Involving Human
Biological Specimens
Although there have been few legal cases involving disputes
between parties with respect to human tissue research, their
resolution reveals not only the significant gaps in the current
framework but also the lack of consistency among courts,
indicating the wide divergence of views on this issue.180 The
current case law fails to clearly distinguish between the goal of
informed consent—to protect vulnerable research participants
from abuses by researchers—and the quasi-contractual concept of
donation, in which the donor and the recipient are in equal
positions and each has the same ability to establish the terms of
the donation.181 In Greenberg v. Miami Children’s Hospital
Research Institute, family members with children suffering from
Canavan disease, a rare genetic disorder, along with nonprofit
organizations with an interest in the disease, secured the help of
Dr. Matalon, a research physician, to identify the genes
responsible for the fatal disease and develop a test to detect the
mutation.182 Plaintiffs provided Dr. Matalon with tissue
specimens (including blood, urine, and autopsy samples),
financial support, and confidential information “with the
understanding and expectations that such samples and
information would be used for the specific purpose of researching
Canavan disease and identifying mutations in the Canavan
disease which could lead to carrier detection within their families
and benefit the population at large.”183
Using the patients’ samples, Dr. Matalon and his research
team successfully isolated the gene.184 However, unbeknownst to
plaintiffs, Matalon’s research institution, Miami Children’s
Hospital, patented the gene, listing Dr. Matalon as inventor, and
acquired the ability to restrict any activity related to the
Canavan disease gene including “carrier and prenatal testing,
gene therapy and other treatments for Canavan disease and
180.
181.
182.
183.
184.
658
Javitt, supra note 24, at 735.
Id. at 736.
264 F. Supp. 2d 1064, 1066 (S.D. Fla. 2003).
Id. at 1067 (internal quotation marks omitted).
Id.
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Informed Consent
research involving the gene.”185 Additionally, the hospital earned
considerable royalties through enforcement of their gene patent,
and Dr. Matalon personally profited by receiving a significant
federal grant to continue research on the gene patent.186
Outraged by the disregard for their intention that if a test
were developed, it would be provided to the public on an
affordable and accessible basis, the plaintiffs sued Dr. Matalon
and the research institution, claiming lack of informed consent,
breach of fiduciary duty, unjust enrichment, fraudulent
concealment, conversion, and misappropriation of trade
secrets.187 The court dismissed all of the plaintiffs’ claims except
for unjust enrichment.188 With regard to informed consent, the
Greenberg court found that Dr. Matalon did not have a duty of
informed consent with respect to the plaintiffs because he was
not their treating physician.189 Moreover, the court held that
federal regulations190 mandating informed consent for research
185.
186.
187.
188.
189.
190.
Id.
Id. at 1068.
Id.
Id. at 1073, 1078.
Id. at 1070.
The Department of Health, Education, and Welfare has defined
informed consent for use in research as “the knowing consent of an individual or
his legally authorized representative, so situated as to be able to exercise free
power of choice without undue inducement or any element of force, fraud,
deceit, duress, or other form of constraint or coercion.” Public Health Service
Act, 40 Fed. Reg. 11,854, 11,854 (Mar. 13, 1975). A physician who uses a patient
as the subject of an experiment without fully disclosing all of the risks involved
and the nature and purpose of the study, especially in a situation where consent
might be obtained by duress, express or implied, may face substantial legal and
disciplinary consequences. See, e.g., Clay v. Martin, 509 F.2d 109, 111, 114 (2d
Cir. 1975) (reinstating a prisoner’s complaint alleging prison officials obtained
consent via misrepresentation in experimental drug trials on humans); Short v.
Downs, 537 P.2d 754, 756, 758, 759 (Colo. 1975) (awarding both actual and
punitive damages to a plaintiff patient when physician fraudulently informed
patient he would be using a certain safe breast injection formula, but injected a
different formula labeled “not for human use.”). In addition to the medicallyrelated risks and benefits inherent in a medical treatment, a physician has a
duty to disclose “personal research or economic interests unrelated to the
patient’s health, the right of the patient to share in any financial profits
realized from his or her physician’s research, and the legal theories under which
a patient might recover.” Frank J. Wozniak, Annotation, Physician’s Use of
Patient’s Tissues, Cells, or Bodily Substances for Medical Research or Economic
Purposes, 16 A.L.R. 5TH 143, 147 (1993).
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involving human subjects did not apply to this case, and even if
the duty of informed consent did apply, it did not include a duty
to disclose the researchers’ financial interests in the study,
because the plaintiffs were tissue “donors rather than objects of
human experimentation.”191
In contrast, the court in Moore v. Regents of the University of
California found that a physician must disclose personal
interests, including financial motivation, to a patient when he is
not merely a tissue donor but also a patient with which the
physician has a fiduciary duty.192 After UCLA hematologist Golde
The federal human subject protection regulations are known as “The
Common Rule.” 45 C.F.R. §§ 46.101–.409 (2011). See generally 45 C.F.R. §§
46.101–.124 (2011) (governing research conducted or funded by the Department
of Health and Human Services (HHS), which includes the National Institutes of
Health); 21 C.F.R. §§ 50.1–.48 (2011) (governing clinical studies by the Food
and Drug Administration (FDA) to support applications for research on
marketing permits for products including drugs, food additives, biological
products, and medical devices); 45 C.F.R. §§ 46.116–.117 (2011) (The HHS
regulations explicitly address the general requirements for informed consent).
However, these regulations apply only to research involving human subjects
that is federally-funded or conducted. Id. § 46.101(a)(1)–(2). The research must
be linked to HHS by direct financial support or via staffing with government
employees. Id. § 46.101(a). Furthermore, the federal regulations exempt various
type of research involving human participants such as research on diagnostic
specimens. Id. § 46.101(b)(4). While the federal regulations do not expressly
define research with human tissue specimens as human subject research, if
such research involves “identifiable private information,” it is encompassed by
the definition. Id. § 46.102(f). With regards to tissue specimens that contain no
identifiers, the Office of Human Research Protections within the National
Institutes of Health (NIH), asserts that research involving “coded,” or nonidentifiable, human specimens does not constitute human subject research—so
long as the specimens were not collected specifically for the proposed research
project through interaction with living individuals and the investigator cannot
readily ascertain the identity of the individual to whom the coded private
information belongs. See OFFICE FOR HUMAN RESEARCH PROTS., DEP’T OF HEALTH
& HUMAN SERVS., GUIDANCE ON RESEARCH INVOLVING CODED PRIVATE
INFORMATION OR BIOLOGICAL SPECIMENS (2008), available at http://www.
hhs.gov/ohrp/policy/cdebiol.html. The federal regulations governing human
subjects in research do provide that one of the basic elements of informed
consent is a statement that the subject may refuse to participate in research
and the subject may discontinue research participation at any time. 45 C.F.R. §
46.116(a)(8) (2011).
191. Greenberg v. Miami Children’s Hosp. Research Inst., 264 F. Supp. 2d
1064, 1070–71 (S.D. Fla. 2003). “There is no automatic fiduciary relationship
that attaches when a researcher accepts medical donations and the acceptance
of trust . . . cannot be assumed once a donation is given.” Id. at 1072.
192. 793 P.2d 479, 485 (Cal. 1990).
660
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Informed Consent
diagnosed patient Moore with hairy-cell leukemia, a rare form of
cancer, he performed a splenectomy as a necessary part of
Moore’s treatment.193 The surgery appeared to be successful;
however, Golde asked Moore to return to UCLA on several
occasions for follow-up visits and to provide additional blood
samples, which Moore believed were necessary for his continued
treatment.194
Without Moore’s knowledge, Dr. Golde, along with research
colleague, Dr. Quan, used Moore’s cells from his spleen and other
tissue samples he had provided in the course of his medical
treatment to develop a cell line.195 Drs. Golde and Quan filed a
patent for the “Mo cell line,” naming the two of them as inventors
and the Regents of the University of California as assignee.196
After receipt of the patent, with the Regents’ assistance, Golde
licensed the cell line to two biotechnology firms for the
commercial development of the cell line and its byproducts.197
The biotechnology companies compensated Golde as a consultant,
and Golde additionally acquired the rights to 75,000 shares of
common stock.198 At that point the Mo cell line’s market value
was an estimated $3 billion.199
When Moore discovered what had been done with his cells,
he sued UCLA, the researchers, and the biotechnology firms for a
share of the profits generated from his cells.200 The Supreme
Court of California held that Moore successfully stated causes of
action against Dr. Golde for breach of fiduciary duty and lack of
informed consent.201 In ruling in favor of Moore on the combined
193.
194.
195.
196.
197.
198.
199.
200.
201.
Id. at 481.
Id.
Id.
Id. at 482.
Id.
Id.
SKLOOT, supra note 1, at 201.
Moore, 793 P.2d at 480–82.
Id. at 483–85. However, the majority denied Moore’s conversion claim,
holding that he had neither ownership nor possessory rights in his excised cells.
Id. at 492–93. The court found that because “Moore clearly did not expect to
retain possession of his cells following their removal, to sue for their conversion
he must have retained an ownership interest in them.” Id. at 488–89. In
reaching its denial of the conversion claim, the court relied on the fact that no
judicial decision supported Moore’s claim that a person retains a sufficient
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breach of fiduciary duty and lack of informed consent claim, the
majority held that for a physician to satisfy his fiduciary duty,
and to obtain the patient’s informed consent, he must disclose
personal interests apart from the patient’s health, such as
research or economic, that might affect his medical judgment.202
Consequently, both the Moore and Greenberg holdings
underscored the principle that, unless a fiduciary relationship
exists between a researcher and a research participant (i.e., a
physician-patient relationship is present prior to the research
objective), then there is no duty of the researcher to inform a
research participant of the potential value or commercialization
of his or her cells.203
IV. THE FIDUCIARY RELATIONSHIP BETWEEN
RESEARCHER AND HUMAN SUBJECT
The lines between treatment and research are too often
blurred, creating a major problem that undermines the
protection afforded to subjects of research.204 Therefore, it is
critical to treat clinical research as a distinct category, apart
from clinical treatment.205 Generally, the doctrine of informed
consent imposes similar disclosure and consent obligations for
therapy and for research.206 However, in therapeutic encounters,
unlike in research encounters, the physician’s only concern
should be the benefit of the patient.207 This basic expectation lays
the foundation for the belief, shared by physicians and patients,
that in therapeutic settings, physicians do their best for the
interest in excised cells. Id. at 489 & n.28. California statutory law strictly
limits any continuing interest of a patient in excised cells to protect the public
health and safety, and that the “subject matter of the Regents’ patent—the
patented cell line and the products derived from it—cannot be Moore’s property
. . . because the [Mo] cell line is factually and legally distinct from the cells
[excised] from Moore’s body.” Id. at 491–92.
202. Id. at 485.
203. See id. at 485; see also Greenberg v. Miami Children’s Hosp. Research
Inst., 264 F. Supp. 2d 1064, 1071–72 (S.D. Fla. 2003).
204. Jay Katz, Human Experimentation and Human Rights, 38 ST. LOUIS U.
L.J. 7, 17 (1993).
205. Id.
206. Id. at 12.
207. See id. at 14–15.
662
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Informed Consent
individual and thus, the physician’s recommendations can be
trusted.208 In clinical research, on the other hand, patientsubjects are used for scientific ends, and the investigator does not
view the research subjects as patients, but as subjects to be
objectified in pursuit of research goals.209
Professor Gail Javitt asserts that the Moore court failed to
realize Moore’s transition from patient to research subject,
therefore, its informed consent discussion is flawed.210
Specifically, when Golde took Moore’s cells for research purposes
without informing him, Golde breached his duty to Moore as the
research subject, aside from whatever duties he owed Moore as a
patient.211 By the court’s reasoning, if Golde had not been Moore’s
treating physician, or if he was oblivious to the cells’ possible
research value at the time of surgery, he would have been free of
obligation to inform Moore of the value of his cells.212 Likewise,
according to the Moore majority, neither Dr. Quan nor the
Regents had a duty to obtain Moore’s consent to use his cells
because neither had a physician-patient relationship with Moore
such that a fiduciary duty existed.213
However, the relationships between both physician and
patient, and researcher and human subject, constitute fiduciary
relationships. Hence, the importance of distinguishing between
therapeutic treatment and clinical research is to analyze the
expectations of the patient or research subject as part of that
fiduciary relationship. Public trust of the human subject research
enterprise is crucial to such participation.214 If potential tissue
contributors believe that they are undervalued, that researchers
208. Id. at 15.
209. Id. at 15–16.
210. Javitt, supra note 24, at 738; see Grimes v. Kennedy Krieger Inst., 782
A.2d 807, 838 (Md. 2001) (“[F]ailing to recognize that subjects who volunteer for
the sake of the advancement of science are differently situated from the
patients who stand to benefit from treatment results in an analysis that
misconceives the purpose of disclosure.”).
211. Javitt, supra note 24, at 739.
212. Id. at 739–40.
213. Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 486 (Cal. 1990).
214. See Laura M. Beskow & Elizabeth Dean, Informed Consent for
Biorepositories: Assessing Prospective Participants’ Understanding and
Opinions, 17 CANCER EPIDEMIOLOGY, BIOMARKERS & PREVENTION 1440, 1447
(2008).
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are withholding information from them, or that the process is
unfair generally, they may hesitate to contribute or even object to
the use of their previously collected samples.215 In his dissent in
Moore, Justice Mosk echoed the importance of the human source
of the tissue collected and protecting the rights and interests of
that crucial entity.216 He noted:
There is . . . a third party to the biotechnology enterprise—the
patient who is the source of the blood or tissue from which all
these profits are derived. While he may be a silent partner, his
contribution to the venture is absolutely crucial . . . but for the
cells of Moore’s body taken by defendants there would have
been no Mo cell line at all. Yet defendants deny that Moore is
entitled to any share whatever in the proceeds of this cell line.
This is both inequitable and immoral.217
The court premised its decision on the informed consent
claim in favor of Moore on the fact that Dr. Golde did not disclose
his commercial research interests prior to performing Moore’s
surgery; and thus, violated his duty to disclose any conflicts of
interest that may affect his medical judgment and, consequently,
patient health.218 While the decision is premised on Golde’s duty
to Moore as his treating physician, the court does not address
whether Golde was required to disclose his commercial interests
because of the coexistence of the two relationships with Moore
(physician-patient and researcher-tissue source), or if Golde’s
research alone required that he disclose his financial interests.219
In failing to acknowledge the fiduciary relationship between
215. Javitt, supra note 24, at 749; see Moore, 793 P.2d at 516 (Mosk, J.,
dissenting).
216. Moore, 793 P.2d at 516–17 (Mosk, J., dissenting) (“As Dr. Thomas H.
Murray, a respected professor of ethics and public policy, testified before
Congress, . . . ‘[i]f biotechnologists fail to make provision for a just sharing of
profits with the person whose gift made it possible, the public’s sense of justice
will be offended and no one will be the winner.’” (quoting Thomas H. Murray,
Who Owns the Body? On the Ethics of Using Human Tissue for Commercial
Purposes, IRB: A Review of Human Subjects Research, Jan.–Feb. 1986, at 1,
5)).
217. Id. at 516 (Mosk, J., dissenting).
218. Id. at 484.
219. Kevin L. J. Oberdorfer, Note, The Lessons of Greenberg: Informed
Consent and the Protection of Tissue Sources’ Research Interests, 93 GEO. L.J.
365, 380 (2004).
664
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Informed Consent
researcher and research participant, the Moore court’s holding
offers little protection to the increasing number of contributors of
tissue samples who are not patients, as seen in Greenberg.220
Courts should treat human research subjects and patients
the same with regards to informed consent and fiduciary duty.221
Because the core principle of the informed consent doctrine is
patient autonomy, namely self-determination, or the principle
that “[e]very human being of adult years and sound mind has a
right to determine what shall be done with his own body,”222
fiduciary duty is inherent not only in the physician-patient
relationship but also in the researcher-human subject
relationship.223 In Greenberg, for example, upon enrollment into
the research study involving their tissues, the plaintiffs signed
informed consent documents.224 Plaintiffs consented solely to the
research—the single purpose of contributing their tissue was to
have research performed with it.225 Consequently, at the time the
plaintiffs provided their tissue, the research institution had
assigned each of them the role of research subject, a role that
inherently created a fiduciary relationship between researcher
220. Javitt, supra note 24, at 739–40.
221. See Moore, 793 F.2d at 517, 520 (Mosk, J., dissenting); Grimes v.
Kennedy Krieger Inst., 782 A.2d 807, 850 (Md. 2001) (holding that a special
relationship exists between researcher and human subject, and that a
researcher’s “duty to a vulnerable research subject is independent of consent,
although the obtaining of consent is one of the duties a researcher must
perform.”); see also 2 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG
MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 182 (1951)
[hereinafter NUERNBERG] (“The duty and responsibility for ascertaining the
quality of the consent rests upon each individual who initiates, directs or
engages in the experiment.”); Javitt, supra note 24, at 743 (assigning
individuals the role of human subjects by its nature places the researcher in a
fiduciary relationship with the human subjects, and as such imposes the duty of
full disclosure on the researcher).
222. Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).
223. See Sandra J. Carnahan, Promoting Medical Research Without
Sacrificing Patient Autonomy: Legal and Ethical Issues Raised by the Waiver of
Informed Consent for Emergency Research, 52 OKLA. L. REV. 565, 575 (1999)
(asserting that the lines between treatment and research are blurred such that
the tenets of the informed consent doctrine in the therapeutic relationship
extend to the research forum, but that standards for consent should be higher
in the research setting).
224. Greenberg v. Miami Children’s Hosp. Research Inst., 264 F. Supp. 2d
1064, 1068 (S.D. Fla. 2003).
225. Javitt, supra note 24, at 742–43.
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and human subject and thus, required researchers to ensure that
the subjects’ participation was voluntary and that they were
given all the information necessary to make a decision.226 The
Greenberg court rejected the plaintiffs’ contention that the
researchers breached their fiduciary duty because plaintiffs
failed to sufficiently show that defendants had accepted the trust
placed in them by participants, a necessary element of breach of
fiduciary relationship under common law.227 In its holding,
however, the court failed to recognize that by merely designating
plaintiffs as human subjects, the researchers formed a binding
and ongoing trust relationship with participants.228
Additionally, the Greenberg court failed to clearly distinguish
between the goal of informed consent—to protect vulnerable
research participants from abuses by researchers—and the
quasi-contractual concept of donation, in which the donor and the
recipient have equal bargaining power relative to the donation.229
The court misunderstood the context by which the tissue
“donation” took place, stating that the plaintiffs “are more
accurately portrayed as donors rather than objects of human
experimentation and thus, the voluntary nature of their
submissions warrants different treatment.”230 The plaintiffs
signed a consent form indicating that their tissues were to be
used specifically “[t]o identify mutations in the Canavan gene
226. Id. at 743; see also NUERNBERG, supra note 221, at 182 (“The duty and
responsibility for ascertaining the quality of the consent rests upon each
individual who initiates, directs or engages in the experiment.”).
227. Greenberg, 264 F. Supp. 2d at 1071–72. “There is no automatic
fiduciary relationship that attaches when a researcher accepts medical
donations, and the acceptance of trust . . . cannot be assumed once a donation is
given.” Id. at 1072.
228. Javitt, supra note 24, at 743. The court did not explain why, but it
based its decision on state law rather than federal, and held that Florida law
did not clearly indicate if there was a duty of informed consent for research
subjects, “although defendants conceded that a duty ‘does attach at some point
in the relationship.’” Id. at 742 n.157 (quoting Greenberg, 264 F. Supp. 2d at
1070). Additionally, the court evidently misinterpreted “the purpose, goals, and
duties attendant to human subject research generally, and informed consent
specifically, under federal law.” Id. In fact, rather than citing the Common
Rule, 45 C.F.R. Part 46, the Greenberg court cites FDA regulations in spite of
the fact that the research did not involve FDA-regulated products. Id.; see also
264 F. Supp. 2d at 1079.
229. Javitt, supra note 24, at 736.
230. Greenberg, 264 F. Supp. 2d at 1071.
666
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Informed Consent
which may lead to carrier detection within my family.”231 Had
plaintiffs appreciated the consent process as a legal transaction
with the defendants, they might have better considered their own
best interests before agreeing to donate their tissues, for
example, conditioning their consent on the inclusion of certain
terms.232 Consequently, the Greenberg plaintiffs were stripped of
the protective veil that informed consent typically provides
research subjects—deprived of key information and equal
bargaining power that usually attaches simply with the status of
donor.233
Courts’ distinction between tissue “donors” and “objects of
human experimentation” assumes that the conflict of interest
concern at the core of Moore’s holding is not present in the
researcher-tissue source relationship.234 In Washington
University v. Catalona, for example, Dr. Catalona established a
biorepository containing a considerable collection of tissue
samples from patients with prostate cancer, many of whom he
had treated personally.235 The patients were invited to
participate in genetic research by providing their tissue samples
to the biorepository and signing a consent form upon entering the
study.236 The forms generally used the word “donate” to
characterize the contribution of the sample; the participants were
informed that their samples might be used by different entities,
but that they retained the right to withdraw from the research
and have their tissue samples destroyed at will.237 Finally, the
consent forms indicated that the patients did not have any claim
to the donated tissues or materials created from them.238
When Dr. Catalona left Washington University, he sought to
take the collection of tissue samples with him to his new
institution, and he obtained release forms from the research
231. Complaint at 12, Greenberg v. Miami Children’s Hosp. Research Inst.,
264 F. Supp. 2d 1064, 1068 (S.D. Fla. 2003) (No. 00C-6779), available at
http://graphics8.nytimes.com/packages/pdf/business/20070128_FRAMING.pdf.
232. Javitt, supra note 24, at 744.
233. Id.
234. Oberdorfer, supra note 219, at 382.
235. Catalona II, 490 F.3d 667, 670 (8th Cir. 2007).
236. Id. at 671.
237. Id.
238. Id.
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participants authorizing their transfer of samples to him.239
Washington University, however, claimed ownership of the
biorepository and the samples.240 In affirming the decision below,
the appellate court found that the tissue samples were “inter
vivos” gifts from the patients to the institution241 because: (1) the
patients had donative intent,242 (2) they had delivered their
property to the donee (the institution),243 and (3) the donee had
accepted the gift.244 Moreover, the court held that even though
the consent form expressly indicated participants’ right to revoke
or destroy the samples, this clause did not negate the samples’
gift status.245 In classifying the transaction as a “donation,” the
decision stripped contributors of their right to control their
tissues; and thus exploiting participants’ expectation that, as
human research subjects, the institution maintained a duty of
loyalty to them.246 Despite the use of the word “donation” in the
forms, it is unlikely that the research participants intended to
make such a gift, or that they knew that they were signing away
239.
240.
241.
242.
243.
244.
245.
Id. at 672.
Id.
Id. at 676.
Id. at 674.
Id.
Id. at 675.
Id. (“The attachment of a condition to a charitable donation of property
does not negate or void an otherwise valid inter vivos gift.”).
246. Javitt, supra note 24, at 746. Additionally, the Catalona II court failed
to address the fact that the consent form signed by the contributors included an
agreement to waive any claim to “donated” body tissues and relinquish rights to
any materials created from the samples. See Catalona II, 490 F.3d at 675 n.7;
Javitt, supra note 24, at 746. The federal regulations explicitly prohibit the
inclusion of exculpatory language, such as waivers of legal rights, in consent
documents; therefore, the waiver language contained in the consent forms
appears to violate the regulations. Javitt, supra note 24, at 745–46 (“No
informed consent, whether oral or written, may include any exculpatory
language through which the subject or the representative is made to waive or
appear to waive any of the subject’s legal rights.” (quoting 45 C.F.R. § 46.116
(2009)). Nevertheless, the Catalona II court avoided this issue by framing the
transaction as a donation. Id. at 747 (“Because the specific language contained
in the consent forms . . . as well as the circumstances surrounding the
[contriubtors’] decision to donate their biological materials, convinces us [they]
intended to make inter vivos gifts of their materials, we find it unnecessary to
address the . . . validity of the consent forms’ waiver language . . . .” (quoting
Catalona II, 490 F.3d at 675 n.7)).
668
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Informed Consent
legal rights by joining the study.247 The court’s holding relies on
the notion that, in contrast to the traditional researcher-human
subject relationship, there is no continued interaction between a
researcher and a tissue source.248 Specifically, the risk of a
researcher’s conflict of interest impairing professional judgment
is not present, and as a result, the risk to a patient’s health does
not exist in the researcher–tissue source relationship.249
However, even if individuals are donors and do not have
continuing communication with researchers, they are entitled to
the quasi-contractual protections of donation—equal bargaining
power; therefore, self-determination remains a vital element of
the transaction.250
V. A NEED FOR LEGISLATIVE REFORM
Due to the rapid growth of the biotechnology field,251 the
concurrent increasing complexity of issues,252 and the outdated
federal regulations,253 new legislation is needed to guide courts in
247.
248.
249.
250.
251.
Javitt, supra note 24, at 746.
Oberdorfer, supra note 219, at 382.
Id.
See Javitt, supra note 24, at 736.
In the 2003 fiscal year, the National Institutes of Health (NIH) spent
nearly $27 billion on biomedical research, a figure double that spent five years
prior. Tom Abate, Special Report: Experiments on Humans: Rules for Clinical
Trials are Confusing, Inconsistent, S.F. CHRON., Aug. 5, 2002, at A1, available at
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2002/08/05/MN47420.DTL.
Additionally, in the private sector, biotech firms spent $15.7 billion on research
and development in 2001 versus $5.7 billion in 1993. Id.
252. Grimes v. Kennedy Krieger Inst., 782 A.2d 807, 862 (Md. 2001) (Raker,
J., dissenting) (recognizing the complexity of contemporary issues related to
informed consent and human subject research).
253. In 1991, eighty percent of human clinical trials for pharmaceuticals
were conducted at academic medical centers, whereas in 1998, that figure
dropped by half to only forty percent. Jason E. Klein & Alan R. Fleischman,
The Private Practicing Physician-Investigator: Ethical Implications of Clinical
Research in the Office Setting, HASTINGS CTR. REP., July–Aug. 2002, at 22. As a
result, large numbers of private practice physicians have become physicianresearchers, and their patients have become patient-subjects. Id. Moreover, as
of 2005, one source reported that industry, rather than the federal government,
provided an estimated seventy percent of the funding for clinical drug trials in
the United States. ERIN D. WILLIAMS, CONG. RESEARCH SERV., RL32909 FEDERAL
PROTECTION FOR HUMAN RESEARCH SUBJECTS: AN ANALYSIS OF THE COMMON RULE
AND ITS INTERACTIONS WITH FDA REGULATIONS AND THE HIPAA PRIVACY RULE 18
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their decisions regarding human subject research with
biospecimens.254 At least one court analyzing informed consent in
human clinical trials recognized that it “had no basis to address
these very complex issues[,]” and “if a change [wa]s to be made in
the State’s policy of regulating research studies, unless clearly
presented to the court, it should be made by legislative
enactment.”255 Furthermore, courts have intimated that the
serious public policy considerations inherent in the issue of
consent to participation in a nontherapeutic research study and
the ethics of the research conducted in those cases is best left to
the legislature.256 Due to the innovative nature of human subject
research, the current informed consent standards are inadequate
to govern research with human biological materials.
The
physician-based standard is impossible to apply to human subject
research because the very purpose of research is innovation,
thus, there is no prevailing standard of care. Likewise, there
does not exist a “reasonable patient” in the evolving and
subjective field of human subject research so the objective
patient-based standard is inapplicable.
Finally, while the
subjective patient-based standard is the optimal of the three
standards of informed consent discussed, researchers do not
always know all of the risks and benefits involved in the
research, nor are they able to ascertain the subjective beliefs of
each and every participant.
Consequently, new legislation
governing informed consent in human subject research is
necessary because the current informed consent standards are
unequipped to handle this evolving field.
A. Amend the Common Rule
Although legislation to amend the current federal regulations
(updated June 2, 2005), available at http://www.fas.org/sgp/crs/misc/RL32909.
pdf. This shift in institutional human research to private investigations
necessitates legislation beyond the Common Rule, which governs only federally
funded human subject research. Id. at 16, 18, 22; Klein & Fleischman, supra at
26.
254. See WILLIAMS, supra note 253, at 10–11, 22–23.
255. Grimes, 782 A.2d at 862 (Raker, J., dissenting) (citing Md. Nat’l Bk. v.
United Jewish Appeal Fed’n of Greater Wash., Inc., 407 A.2d 1130 (1979)).
256. See id. at 846, 850.
670
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Informed Consent
(the Common Rule)257 has been introduced in every session of
Congress since 1997,258 the regulations remain the same as they
were after the 1981 revisions.259 The Common Rule only pertains
to research that is federally funded; thus, regulations must be
enacted that govern private human subject research as well.260
Furthermore, as writer Rebecca Skloot notes, because the
Common Rule was enacted to “govern research on living,
breathing humans, not their disembodied tissues,”261 it fails to
protect contributors of biological material from potential
nonphysical or psychosocial injury,262 such as when tissue is used
for purposes of which contributors do not approve, as in
Greenberg.263
If courts are to take a systematic, well-founded approach to
257. 45 C.F.R. § 46.101–.124 (2011).
258. WILLIAMS, supra note 253,
at Summary. The Protection for
Participants in Research Act of 2003 was proposed legislation that would have
extended the governance of the Common Rule and other subparts of 45 C.F.R.
part 46 to all human subject research, whether publicly or privately funded.
See H.R. 3594, 108th Cong. § 2 (2003). Moreover, the Act proposed that
researchers be required to provide contributors with information on how to
contact the Office for Human Research Protections (OHRP) to submit questions
regarding their rights or to express concerns about research. Id. The Act would
have required the HHS Secretary to publish a determination in the Federal
Register, clarifying whether there were “circumstances in which research that
studie[d] human tissue or other types of clinical specimens,” or that did not
“involve any interaction or intervention with a living human” should have been
“considered human subject research.” Id. Finally, the proposed Act required
the HHS secretary to establish expanded informed consent criteria that
provided for “the provision of full and complete information relevant to the
research to a prospective human subject.” Id.
259. WILLIAMS, supra note 253, at 14.
260. See H.R. 3594.
261. Rebecca Skloot, Taking the Least of You, N.Y. TIMES MAG., Apr. 16,
2006, at 38, 45, available at http://www.nytimes.com/2006/04/16/magazine/
16tissue.html?pagewanted=all.
262. See Henry T. Greely, The Uneasy Ethical and Legal Underpinnings of
Large-Scale Genomic Biobanks, 8 ANN. REV. GENOMICS & HUM. GENETICS 343,
349 (2007) (“The Common Rule . . . has done a decent job of protecting research
subjects from physicial risks, but has largely ignored the fact that research
subjects may have other interests they care about.”).
263. Greenberg v. Miami Children’s Hosp. Research Inst., 264 F. Supp. 2d
1064, 1067–68 (S.D. Fla. 2003). Tissue sample contributors were outraged
when researchers used their samples for commercial gain rather than for the
specific purpose for which they consented: researching Canavan Disease in
order to establish a carrier detection test. Id. at 1068.
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human subject research-related injuries and disputes, the
legislature must clearly define the fiduciary relationship between
researcher and human subject and the duties thereby imposed.
As seen in the Greenberg, Moore, and Catalona II decisions,
courts have analyzed the researcher-human subject relationship
differently,264 and the varying findings of fiduciary duty or lack
thereof have created opposing decisions, which provides for
uncertainty in deciding future cases. The most recently proposed
legislation, the Research Participants Protection Modernization
Act of 2011,265 addresses many of the problematic issues of
human subject research that courts have grappled with and
therefore, should be signed into law.266 The Act would require
that the HHS Secretary publish the determination in the Federal
Register of several matters, including: how requirements
regarding the definition and management of investigators’
potential financial conflict of interest “should be strengthened
and enforced to protect human subjects more effectively[,]”267
“whether and under what circumstances research that studies
human tissue or other types of clinical specimens should not be
considered a clinical investigation[,]”268 and how regulations of
human subject research, including requirements of informed
consent, “should be modified to reduce regulatory burden
(including burden on institutions . . . and investigators) while
protecting research participants, including clarification of the
circumstances in which informed consent does not need to be [in]
writing.”269 Though the wording of the proposed legislation
alludes to the clarification of the researcher-human subject
relationship, it fails to plainly define the fiduciary duty between
264. See Wash. Univ. v. Catalona (Catalona II), 490 F.3d 667 (8th Cir.
2007); Greenberg, 264 F. Supp. 2d 1064; Moore v. Regents of the Univ. of Cal.,
793 P.2d 479 (Cal. 1990).
265. Research Participants Protection Modernization Act of 2011, H.R.
2625, 112th Cong. § 2 (1st Sess. 2011).
266. The Research Participants Protection Modernization Act of 2011 was
introduced in the House of Representatives on July 22, 2011. Bill Summary &
Status, H.R. 2625, 112th Cong., LIBRARY OF CONG., http://thomas.loc.gov/cgibin/bdquery/z?d112:h.r.02625 (last visited Feb. 18, 2012). The bill was referred
to the House Subcommittee on Health on August 1, 2011. Id.
267. H.R. 2625. § 2 (analyzing proposed § 491A(c)(2)(C)(iii)(I)).
268. Id. (analyzing proposed § 491A(c)(2)(C)(iii)(III)).
269. Id. (analyzing proposed § 491A(c)(2)(C)(iii)(XI)).
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Informed Consent
researcher and human subject.
Like the most recent proposed legislation, the World Medical
Association’s (WMA) Declaration of Helsinki270 and the
Nuremberg Code speak strongly to the existence of special
relationships imposing ethical duties on researchers who conduct
nontherapeutic research on human subjects271 and require that
researchers obtain the informed and voluntary consent of
potential research subjects.272 While courts have relied on these
codes for guidance,273 in the absence of judicial precedent, the
fiduciary relationship between researcher and human subject has
yet to be legislatively defined and codified.
In order to alleviate current gaps in legislation and discord
among courts, the Common Rule should be amended as proposed
in the Protection for Participants in Research Act of 2003 to read:
“Protection of Human Subjects in Research; Uniform National
Applicability of Common Rule and Provisions Protecting
270. The Declaration included a code of ethics for investigative researchers
and was the medical community’s attempt to establish its own set of rules for
conducting research on human subjects. WORLD MED. ASS’N., DECLARATION OF
HELSINKI: ETHICAL PRINCIPLES FOR MEDICAL RESEARCH INVOLVING HUMAN
SUBJECTS (adopted by the 18th World Med. Ass’n. (WMA) Gen. Assembly,
Helsinki, Finland, June 1964, and amended by the 59th WMA Gen. Assembly,
Seoul, Korea, Oct. 2008).
271. Grimes v. Kennedy Krieger Inst., 782 A.2d 807, 850 (Md. 2001). The
Declaration of Helsinki, in relevant part, states that “[i]t is the duty of
physicians who participate in medical research to protect the life, health,
dignity, integrity, right to self-determination . . . of research subjects[;]” that
participation by competent individuals as human research subjects must be
voluntary, and they must be informed of the right to refuse to participate in the
study or to withdraw consent to participate at any time without penalty; and,
that “[f]or medical research using identifiable human material or data,
physicians must normally seek consent for the collection, analysis, storage
and/or reuse.” WORLD MED. ASS’N., supra note 270, at §§ 11, 22, 24–25.
Additionally, the Declaration of Helsinki states that a researcher must fully
inform a potential subject of “the aims, methods, sources of funding, any
possible conflicts of interest, institutional affiliations of the researcher, the
anticipated benefits and potential risks of the study and the discomfort it may
entail, and any other relevant aspects of the study[,]” and obtain the “subject’s
freely-given informed consent, preferably in writing.” Id. at § 24.
272. Grimes, 782 A.2d at 836 n.31 (“The duty and responsibility for
ascertaining the quality of the consent rests upon each individual who initiates,
directs or engages in the experiment.” (quoting NUERNBERG, supra note 221, at
182)).
273. E.g., id.
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Vulnerable Populations.”274 The law should be broadened so as to
protect all human research subjects regardless of the source of
funding for the research. House Bill 3594 proposes a version that
would protect human subjects:
(a) PROTECTION OF HUMAN SUBJECTS—
(1) IN GENERAL — All human subject research
shall be conducted in accordance with the Common
Rule, and as applicable to the human subjects involved
in such research, with the vulnerable-populations rules.
(2) APPLICABILITY — Paragraph (1) applies to
human subject research that—
(A) is conducted, supported, or otherwise
subject to regulation under a provision of Federal
law (other than this section), without regard to
whether the Federal agency that administers such
law has taken administrative action to make the
Common Rule applicable to the agency; or
(B) is not described in subparagraph (A) and
has activities that are in or that affect interstate
commerce.275
The Common Rule should add a plain definition of the
fiduciary duty between researcher and human subject.
Additionally, the definition of “human subject,” should be
amended as follows:276
(f) Human subject means a living individual about whom
an investigator (whether professional or student) conducting
research obtains
(1) Data through intervention or interaction with
the individual, or
274. Compare 45 C.F.R. § 46.101 (2011) (limiting regulatory scope to human
subject research that is federally funded only), with Protection for Participants
in Research Act of 2003, H.R. 3594, 108th Cong. § 2 (1st Sess. 2003) (proposing
an extension of the federal regulations to protect all human subjects regardless
of the source of funding of the research (analyzing proposed § 491A(a)(1)–(2))).
275. H.R. 3594 § 2 (proposed § 491A(a)(1)–(2)).
276. This proposal revises the current federal regulation found at 45 C.F.R.
§ 46.102(f)(1)–(2) (2011). Bracketed, italicized language indicates the author’s
proposed modifications.
674
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Informed Consent
(2) Identifiable private information.
Intervention includes both physical procedures by which
data are gathered (for example, venipuncture) and
manipulations of the subject or the subject’s environment that
are performed for research purposes. Interaction includes
communication or interpersonal contact between investigator
and subject. Private information includes information about
behavior that occurs in a context in which an individual can
reasonably expect that no observation or recording is taking
place, and information which has been provided for specific
purposes by an individual and which the individual can
reasonably expect will not be made public (for example, a
medical record).Private information must be individually
identifiable (i.e., the identity of the subject is or may readily be
ascertained by the investigator or associated with the
information) in order for obtaining the information to
constitute research involving human subjects. [Human
biological material and its accompanying information about the
contributor (i.e., the identity of the subject and genetic makeup,
which may be readily ascertained by the investigator via DNA
contained
in
human
specimens)
constitutes
private
information.277 When a researcher uses human biological
material that was previously collected by another person (i.e.,
when a researcher uses human specimens from biobanks in his
research), although the researcher has not had any intervention
or interaction with the individual, research is still subject to
these guidelines if it involves human biological material, which
constitutes identifiable private information.278 . . .
(k) Fiduciary duty means the researcher is required to
ensure that a human subject’s participation is freely agreed to
and that the researcher has given the individual all of the
277. See NAT’L BIOETHICS ADVISORY COMM’N, supra note 53, at 17 (“[F]ew
research samples are unidentifiable.”). Because human biological material
inherently contains individual identifiers, all human biological materials
constitute private information for purposes of the Common Rule. See id.
278. Greely, supra note 262, at 354 (explaining that the Common Rule
applies only to research in which the researcher has contact with the subjects,
or if the research involves identifiable private information; however, data
inherent in biospecimens (i.e., DNA sequences) or collected from tissue sources
at the time of contribution (i.e., past medical history) renders them private
identifiable information, “directly akin to the ‘medical records’ singled out in the
regulation.”).
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information necessary to make a decision to participate.279 The
fiduciary relationship between researcher and human subject
equates to a trust relationship in which a researcher has a duty
to adhere to the specific guidelines and participant’s
expectations as contained in the informed consent document
signed by the human subject.280]
Section 46.101 of the Common Rule, providing the overview
of the policy’s scope, should be amended as follows:281
(b) Unless otherwise required by department or agency
heads, research activities in which the only involvement of
human subjects will be in one or more of the following
categories are exempt from this policy: . . .
(4) Research, involving the collection or study of
existing data, documents, records, pathological
specimens, or diagnostic specimens, if these sources are
publicly available or if the information is recorded by
the investigator in such a manner that subjects cannot
be identified, directly or through identifiers linked to
the subjects. [This does not include human biological
material, either previously collected or collected by the
researcher, as subjects are identifiable through
identifiers present in the material, namely DNA.282]
Finally, in order to clearly delineate the parameters of
informed consent in human subject research, new legislation
should incorporate the following modifications into § 46.116, the
279. See NUERNBERG, supra note 221, at 182 (“The duty and responsibility
for ascertaining the quality of the consent rests upon each individual who
initiates, directs or engages in the experiment.”).
280. See Grimes v. Kennedy Krieger Inst., 782 A.2d 807, 850 (Md. 2001).
The Greenberg court did not explain why, but it based its decision on state law,
not federal, and although Florida law was unclear on whether there was a duty
of informed consent for research subjects, defendants conceded that a duty “does
attach at some point in the relationship.” Greenberg v. Miami Children’s Hosp.
Research Inst., 264 F. Supp. 2d 1064, 1070 (S.D. Fla. 2003).
281. This proposal revises the current federal regulation found at 45 C.F.R.
§ 46.101(b)(4) (2011). Bracketed, italicized language indicates the author’s
proposed modifications.
282. See Lori Andrews, Who Owns Your Body? A Patient’s Perspective on
Washington University v. Catalona, 34 J.L. MED. & ETHICS 398, 404 & n.67
(2006) (“Currently, the samples are still linked to participants’ identities.”
(quoting Plaintiff’s Post-Trial Brief at 10, Wash. Univ. v. Catalona, 437 F. Supp.
2d 985 (E.D. Mo. 2006) (No. 4:03-CV-1065 SNL))).
676
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Informed Consent
general requirements for informed consent:283
(a) Basic elements of informed consent. Except as provided
in paragraph (c) or (d) of this section, in seeking informed
consent the following information shall be provided to each
subject:
(1) A statement that the study involves research, an
explanation of the purposes of the research and the
expected duration of the subject’s participation, a
description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks
or discomforts to the subject[, including but not limited
to, relinquishment of all ownership rights in
participant’s excised biological material in research with
human biological material;284]
(3) A description of any benefits to the subject or to
others which may reasonably be expected from the
research[, including financial gain by researchers or
other entities, from products developed from research on
a contributor’s biological material.285]
283. This proposal revises the current federal regulation found at 45 C.F.R.
§ 46.116(a)–(b) (2011). Bracketed, italicized language indicates the author’s
proposed modifications; bolded language adds emphasis for purposes of this
Note only.
284. See generally Wash. Univ. v. Catalona (Catalona I ), 437 F. Supp. 2d
985 (E.D. Mo. 2006), aff’d, Catalona II, 490 F.3d 667 (8th Cir. 2007). Research
subjects were unaware that by consenting to participate they relinquished
ownership rights in their excised biological material even though the consent
forms indicated the ability to withdraw from the study at any time. Id. at 994,
998–99. The court acknowledged the scarcity of case law related to ownership of
biological materials, but relied on Greenberg and Moore in finding that research
participants retain no ownership of biological materials they contribute for
medical research. Id. at 995 & n.15, 996–97. As a result of the lack of
precedence, and the confusion that can arise as seen in Catalona I, the
relinquishment of ownership rights in excised biological material contributed
for medical research should be explicitly explained to research participants .
285. See AM. MED. ASS’N, CODE OF MEDICAL ETHICS, COMMERCIAL USE OF
HUMAN TISSUE Op. 2.08(2)-(3) (2007), available at http://www.ama-assn.
org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion208.page? (advising physicians to inform patients of researchers’
potential commercial gains from the patients’ tissue and prohibiting the
commercialization of human tissue without the informed consent of the
contributing human source).
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(4) A disclosure of appropriate alternative
procedures or courses of treatment, if any, that might be
advantageous to the subject;
(5) A statement describing the extent, if any, to
which confidentiality of records identifying the subject
will be maintained;
(6) For research involving more than minimal risk,
an explanation as to whether any compensation and an
explanation as to whether any medical treatments are
available if injury occurs and, if so, what they consist of,
or where further information may be obtained;
(7) An explanation of whom to contact for answers
to pertinent questions about the research and research
subjects’ rights, and whom to contact in the event of a
research-related injury to the subject; and
(8) A statement that participation is voluntary,
refusal to participate will involve no penalty or loss of
benefits to which the subject is otherwise entitled, and
the subject may discontinue participation at any time
without penalty or loss of benefits to which the subject
is otherwise entitled. [In research using human
biological material, a statement that subject’s biological
material may be used for subsequent research studies,
and that subjects will not be recontacted prior to using
their biologocial materials for a new study, unless they
provide written disclosure that their biological materials
are to be used only for the exact purpose to which they
originally consent and for no other purposes.286 If
researchers desire to use these contributors’ biological
specimens, they must recontact the contributors and
obtain new written informed consent for the additional
research before proceeding with the study.287]
(b) Additional elements of informed consent. When
appropriate, one or more of the following elements of
information shall also be provided to each subject:
(1) A statement that the particular treatment or
procedure may involve risks to the subject (or to the
286. See Greely, supra note 262, at 358.
287. See id.
678
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Informed Consent
embryo or fetus, if the subject is or may become
pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the
subject’s participation may be terminated
by
the
investigator without regard to the subject’s consent;
(3) Any additional costs to the subject that may
result from participation in the research[, including but
not limited to, in cases of research with human
biological materials, whether, by contributing, the
participants relinquish all ownership rights in their
excised material;]
(4) The consequences of a subject’s decision to
withdraw from the research and procedures for orderly
termination of participation by the subject;
(5) A statement that significant new findings
developed during the course of the research which may
relate to the subject’s willingness to continue
participation will be provided to the subject; and
(6) The approximate number of subjects involved in
the study.
These proposed revisions would clarify the fiduciary relationship
between researcher and human subject, and expand the scope of
human subject research to include research with human
biological materials.
B. Critique of Informed Consent Standards With Respect to
Research With Human Biological Materials
Even if these statutory changes are enacted, problems still
exist in applying the two informed consent standards to research
with biospecimens. The physician-based standard, which
establishes a physician’s duty to disclose based on the prevailing
standard of care,288 would be difficult for courts to use with
biospecimen research, as no prevailing standard exists. In
human biological research, unlike in traditional therapeutic
treatment, the “reasonable medical practitioner under the same
288. Woolley v. Henderson, 418 A.2d 1123, 1129 (Me. 1980).
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or similar circumstances”289 does not exist because the very
purpose of research is innovation; thus, researchers are seldom
under the same exact circumstances because they seek different
objectives and use different scientific methods.
Critics may argue that a physician-based standard could be
implemented solely with respect to disclosure because
researchers are governed by informed consent guidelines as to
what they must disclose; however, varying research objectives
can lend increased or decreased value to certain elements of
informed consent, making it difficult to establish an objective
guideline. Furthermore, in such a controversial and emotionladen field (i.e., using actual body parts of individuals to conduct
research), establishing an objective informed consent standard
like the physician-based standard could undermine the
significance of the human subject.
The objective patient-based standard is inapplicable to
research with biological materials for the same reason that the
physician-based standard is—it is difficult to isolate the
“reasonable patient” in such an innovative and subjective field.
In defining “material risks” as those that a “reasonable person”
would “attach significance to,”290 the objective patient-based
standard fails to consider that individual patients rate risks and
benefits differently based on their personal beliefs.291 The
standard levels the needs of all patients rather than accounting
for personal differences among patients that undergo the same or
similar procedure,292 which is unacceptable for an experimental
field such as research with human biological materials.
Moreover, the risks involved in biospecimen research extend
beyond the initial procedure of having the biospecimen collected,
and many are likely unknown to the reasonable person such that
they would not be deemed material at the time of consent, and
therefore would not require disclosure to the human subject. 293
289. Id.
290. Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir. 1972) (quoting
Waltz & Scheuneman, supra note 156, at 640).
291. King & Moulton, supra note 84, at 443.
292. Id.
293. See Catalona I, 437 F. Supp. 2d 985, 994 (E.D. Mo. 2006) (arguing the
researchers never explicitly disclosed to the research participants that, by
contributing, they would relinquish all ownership rights in their excised
680
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Informed Consent
The subjective patient-based standard is the optimal
informed consent standard of the three discussed with respect to
research with human biological materials, but the standard
remains questionable in that researchers do not always know all
of the risks and benefits inherent in the research (i.e., Henrietta
Lacks’s physician did not know of the financial interest inherent
in her cells), making it impossible for them to inform participants
of them. Furthermore, this standard assumes that physicians
know of participants’ individual beliefs and fears,294 which is
unrealistic given that research studies often include hundreds or
thousands of participants or biospecimens and a single
researcher. Finally, and perhaps most importantly, biospecimens
are intended to be anonymous, so it would be impossible for a
researcher to ascertain the subjective beliefs and fears of each
tissue contributor without first performing DNA analysis on each
specimen to decipher the human source and then seeking out
each individual. Not only is this unfeasible, but also negates the
anonymity process and objectives. Because current informed
consent standards are unequipped to handle the evolving field of
human subject research, namely that with biospecimens, the
need for new legislation governing this specific area of research is
affirmed.
biological material, and had they known, this information would have affected
many research participants’ decisions to contribute), aff’d, Catalona II, 490 F.3d
667 (8th Cir. 2007).
294. See Amy Harmon, Indian Tribe Wins Fight to Limit Research of Its
DNA, N.Y. TIMES, Apr. 21, 2010, at A1, available at http://www.nytimes.
com/2010/04/22/us/22dna.html. In this recent case involving the Native
American Havasupai tribe, for instance, members of the tribe gave hundreds of
blood samples to researchers at Arizona State University (ASU) for diabetes
research because the disease is inordinately prevalent among Havasupai tribe
members. Id. Over the next several years, the ASU researchers attempted to
find genetic associations with diabetes as the Havasupai research participants
consented to; however, the tribe alleged that the researchers also used their
samples to study schizophrenia and the history and migration of the Havasupai
people to North America. Id. While the “risk” of this type of research may not be
material to a non-Havasupai tribe member, the tribe members insisted they
would not have consented to the migration studies because they directly conflict
with their religious beliefs. Id. The ASU Board of Regents ultimately settled
with the Havasupai tribe members, paying them $700,000 and returning blood
samples to them. Id.
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VI. CONCLUSION
As Justice Cardozo wrote, “Every human being of adult years
and sound mind has a right to determine what shall be done with
his own body . . . .”295 In the health care context, this means that
patients make medical decisions freely. However, in order to
make autonomous medical decisions, patients must have
adequate knowledge about their medical conditions and
treatment options, and this is where physician and patient meet.
A physician has a duty to provide adequate information to his or
her patient so that the patient can use practical reasoning to
make an informed decision. While our current legal concepts of
informed consent have successfully preserved this ideal of selfdetermination in a medical context, innovative biotechnology has
pushed the boundaries of these concepts and exemplified that a
new legal framework is necessary.
Legislation is needed to guide courts in their deliberations
over issues involving human subject research. A fiduciary duty
between researcher and human subject exists, which imposes the
duty of informed consent upon researchers, but current
standards of informed consent lag behind the advances in
biotechnology and the legal implications that accompany them.
While the Common Rule provides a good foundation for
legislators to build upon, the regulations must be amended to
include privately funded human subject research, and to address
research with biospecimens in which no interaction exists
between researcher and human subject. Additionally, legislators
must plainly define the fiduciary duty between researchers and
human subjects, such that there is no confusion among courts in
interpreting this relationship and its legal implications, and
judicial precedent can grow.
Amidst the excitement of the new possibilities that lie within
the field of biomedical research, the scientific community must
continue to remember the source of the biological materials—the
human person behind the coded biospecimen. As Justice Mosk
expressed in his dissent in Moore, there is a “‘third party’ to the
biotechnology enterprise,”296 and while he may be easily forgotten
295. Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).
296. Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 516 (Cal. 1990)
682
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Informed Consent
since he is a silent partner, his contribution to the venture is
crucial, and he must be compensated where possible. Human
subject researchers must always remember participants’
contribution to the venture is crucial; thus it is of utmost
importance to ensure proper, informed consent and uphold the
fiduciary duty to human subjects so that the biotechnology
industry may continue to prosper. The story of Henrietta Lacks
illustrates the impact of the “silent partner.” For nearly twentyfive years, her identity was a mystery, yet her contribution to the
field of science was invaluable and continues to be sixty years
later.
(Mosk, J., dissenting).
683
USING DAUBERT PRINCIPLES TO
DETERMINE IF OTHER INCIDENTS ARE
SUBSTANTIALLY SIMILAR IN DESIGN
DEFECT CASES
M. Michelle Jones*
I.
II.
III.
IV.
V.
INTRODUCTION .............................................................. 686
BACKGROUND ................................................................ 691
A. What are Other Similar Incidents? ............................ 692
B. Recent South Carolina and Other Relevant Case
Law Involving Other Similar Incidents...................... 695
C. The Application of South Carolina Case Law to the
Determination of “Substantial Similarity” ................. 701
D. Daubert and its Expanding Effects............................. 703
1. Daubert and Kumho Tire Holdings ....................... 703
2. Daubert and Kuhmo Tire’s Influence in South
Carolina.................................................................. 706
THE APPLICATION OF A DAUBERT ANALYSIS TO
THE WATSON TEST FOR OSI ........................................ 707
A. Are the Alleged Defects Similar? ................................. 712
B. Are the Products Similar?............................................ 715
C. Is the Causation Related to the Defect in the
Other Incidents?.......................................................... 718
D. Excluding All Reasonable Secondary Explanations
for the Cause of the Other Incidents .......................... 722
ARGUMENTS AGAINST STRINGENT ANALYSIS OF
OSI ..................................................................................... 725
CONCLUSION .................................................................. 727
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I. INTRODUCTION
On December 11, 1999, Sonya Watson was driving her
family’s 1995 Ford Explorer.1 Patricia Carter, Watson’s
grandmother, was also in the car.2 According to court filings on
Watson’s behalf, she merged onto I-385 in Greenville County and
set the cruise control on the Explorer at sixty-five miles per hour,
but the vehicle continued to accelerate.3 Watson stated that she
tried to stop the acceleration by attempting to reach down to
“unst[i]ck” the gas pedal, but she was restrained by her seat
belt.4 The Ford Explorer then swerved into the median, turned
sideways, and rolled.5 This accident resulted in the death of
Patricia Carter and left Sonya Watson a quadriplegic.6
Watson filed a products liability suit against Ford Motor
Company7 claiming the Next Generation Cruise Control system
was defective.8 Watson alleged that the wiring in her Explorer
produced an electromagnetic interference (EMI) and affected the
cruise control system, causing the vehicle to suddenly and
uncontrollably accelerate.9
* J.D. Candidate May 2013; B.S. from the University of Georgia. I would like to
thank the editors and staff of the Charleston Law Review for this opportunity
and all their hard work. I would especially like to thank Professor Paul Lund,
Michael Leech, and Ashley Liljenquist for their advice and guidance during this
process. Finally, I would like to thank my family and friends who continue to
support and inspire me every day.
1. Final Brief of Respondents at 2, Watson v. Ford Motor Co., 699 S.E.2d
169 (S.C. 2010) (Nos. 02-CP-23-8147, 02-CP-23-8242), 2008 WL 53117501, at *4
[hereinafter Watson Final Brief of Respondents].
2. Id. at 2. Note that there was another passenger who was not injured in
the accident in the front seat on the passenger’s side of the vehicle. See id.
3. Id.
4. Id.
5. Id.
6. Id.
7. Watson also filed suit against TRW, Incorporated, TRW Vehicle Safety
Systems, Incorporated, and D&D Motors, Incorporated. Watson v. Ford Motor
Co., 699 S.E.2d 169, 173 (S.C. 2010). The other causes of action were also
products liability claims involving the cruise control and seat belts. Id.
8. Id. at 173.
9. See id. at 173; Watson Final Brief of Respondents, supra note 1, at 4–5;
Final Brief of Appellant at 3, Watson v. Ford Motor Co., 699 S.E.2d 169
(S.C. 2010) (Nos. 02-CP-23-8147, 02-CP-23-8242), 2008 WL 5317497, at *5
[hereinafter Watson Final Brief of Appellant].
686
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Daubert in Design Defect Cases
During the trial, Watson introduced evidence of “other
similar incidents” (OSI) through expert testimony, and testimony
of lay witnesses who claimed they had similar experiences of
Ford Explorers suddenly accelerated without driver input.10 The
jury found in favor of Watson and granted her a verdict of $15
million in compensatory damages.11
Ford appealed the ruling to the South Carolina Supreme
Court, challenging the admission of OSI in which Explorers
suddenly accelerated.12 The court evaluated evidence, including
testimony of a former Ford employee who investigated other
incidents as well as testimony of three individuals who
experienced incidents similar to Watson.13 Part of the testimony
given by the former Ford employee concerned thirty-five
incidents in Britain involving sudden acceleration that were
deemed “unexplainable.”14 After reviewing the evidence, the
court agreed with Ford and concluded the OSI should have been
excluded.15
In reaching this decision, the court adopted a four-part test
created in Buckman v. Bombardier Corp.16 Design defect cases
use this test to determine if other incidents are substantially
similar, and thus admissible.17 The party seeking admission of
evidence involving other incidents must prove: “(1) the products
are similar; (2) the alleged defect is similar; (3) causation related
to the defect in the other incidents; and (4) exclusion of all
reasonable secondary explanations for the cause of the other
incidents.”18
Applying this new four-part conjunctive test, the court found
10.
11.
12.
13.
14.
15.
16.
Watson, 699 S.E.2d at 173.
Id. The jury also awarded Patricia Carter’s estate $3 million. Id.
Id. at 172–74, 179.
Id. at 179.
Id.
Id. at 179–80.
Id.; Buckman v. Bombardier Corp., 893 F. Supp. 547 (E.D.N.C. 1995).
In Buckman, the court issued the order after a motion in limine hearing. Id. at
550. Both parties briefed and argued several issues before the court. Id.
17. See Buckman, 893 F. Supp. at 552.
18. Id. The district court draws this test from Hale v. Firestone Tire &
Rubber Co., 736 F.2d 1322, 1332 (8th Cir. 1985).
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that none of Watson’s OSI evidence was admissible.19 The court
stated:
Respondents failed to show that the incidents were
substantially similar and failed to establish a special relation
between the other incidents and Respondents’ accident. First,
the products were not similar because most of the other
incidents involved Explorers that were made in different years
from the Watson Explorer and were completely different
models with the driver’s seat located on the right side of the
vehicle. More importantly, Respondents failed to show a
similarity of causation between the malfunction in this case
and the malfunction in the other incidents and failed to exclude
reasonable explanations for the cause of the other incidents.
Respondents only presented the testimony of the other drivers
and did not present any expert evidence to show that EMI was
a factor in the malfunction in the other incidents. Accordingly,
this evidence was not relevant because the Respondents failed
to show that evidence of these incidents made the existence of
the EMI defect in this case more probable.20
The court continued, stating that even if Watson put forth a
factual foundation that would meet the four-part test, the
evidence was extremely prejudicial.21
Watson was heard February 5, 2009.22 On April 9, 2009, the
South Carolina Supreme Court heard Branham v. Ford Motor
Co.23 Jesse Branham, Jr. brought suit on behalf of his son who
was ejected from the backseat of a two-wheel drive Ford Bronco
II during an accident in which the vehicle rolled over.24 There,
the driver of the vehicle took her eyes off the road in order to
reprimand the four children in the backseat, including
Branham.25 The vehicle veered off the road; she tried to correct;
19.
20.
21.
22.
23.
24.
Watson, 699 S.E.2d at 179–80.
Id. at 170.
Id. at 179–80.
Id. at 169.
701 S.E.2d 5 (S.C. 2010).
Respondent’s Final Brief at 3, Branham v. Ford Motor Co., 701 S.E.2d
5 (S.C. 2010) (Nos. 2002-CP-25-374, 2002-CP-25-375), 2008 WL 5875008, at *5
[hereinafter Braham Respondent’s Final Brief] (plaintiff brought claims under
the theories of strict liability, negligence, and breaches of warranty against
Ford).
25. Branham, 701 S.E.2d at 8. None of the children who were passengers
688
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Daubert in Design Defect Cases
she lost control; and the vehicle rolled over.26 As a result of the
accident, Branham suffered severe brain injuries.27
Branham brought products liability claims under the theories
of negligence and strict liability.28 He claimed there was a design
defect involving the stability and handling of the Bronco II,
which increased its propensity to rollover.29 The alleged defect
focused on the idea that the Bronco II, especially the two-wheel
drive version, which was lighter than the four-wheel drive
version, had a high center of gravity, which decreased the
Branham claimed Ford knew of the
vehicle’s stability.30
instability and should have implemented a different suspension
system in order to lower the center of gravity and increase
stability and handling.31 During trial, Branham introduced
evidence of OSI.32 On appeal, the South Carolina Supreme Court
made note in its opinion of the four-part test adopted in Watson
and held that even if the other incidents survived this test, they
could not have occurred after the manufacture and distribution of
the product in question if there were to qualify as admissible
evidence.33
Ultimately, the court evaluated evidence of accident rates
where the Ford Bronco II and other vehicles in its class rolled
over which was introduced at trial.34 The South Carolina
in the backseat, including Branham, were wearing seat belts at the time of the
accident. Id.
26. Id.
27. Branham Respondent’s Final Brief, supra note 24, at 4–6.
28. Branham, 701 S.E.2d at 8.
29. Id. Branham also brought a claim that the seatbelt sleeve was
defective in a negligence and strict liability causes of action. Id. Ford was
granted directed verdict on the strict liability claim and the South Carolina
Supreme Court found the trial court erred in not also granting a directed
verdict on the negligence claim. Id. at 9.
30. Id. at 10–12.
31. Id.
32. Id. at 20.
33. Id. at 17–19 (holding that because it must be established that a
product was in a defective condition when it left the control of the seller, the
evidence is limited to what was known or could have reasonably been known to
the manufacturer at the time, thus eliminating post-distribution evidence
(citing Claytor v. Gen. Motors Corp., 286 S.E.2d 129, 131–32 (S.C. 1982)));
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. a (1998).
34. Branham, 701 S.E.2d at 20–21.
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Supreme Court held these incidents were not properly limited to
events that occurred prior to the manufacture of the 1986 Bronco
that was involved in the case at hand.35 Ford objected to all the
OSI on the ground that these incidents were not substantially
similar under the Watson four-part test.36 The court disagreed,
stating:
Admittedly, a showing of comparative rollover accident rates
does not establish the manner in which any particular accident
occurred. But Ford misconstrues the essence of Branham’s
design defect claim. To the extent Branham is able to establish
(at or prior to the manufacture date of the subject vehicle) the
rate or number of rollover accidents of the Bronco II was
greater as compared to other vehicles in its class, such evidence
may well be relevant on whether the Bronco II was
unreasonably dangerous.
We do agree with Ford that if the cause of an accident is
known and the cause is not substantially similar to the
accident at issue, evidence of the other accident should be
excluded. Yet, where the precise cause of an accident is not
known, Bronco II rollover accident data has relevance when
compared to rollover accident data of other vehicles in class.
This relevance is linked directly to Branham’s claim that the
design of the Bronco II caused it to have an unreasonably
dangerous tendency to rollover.37
When looking at the form of OSI admitted, this opinion directly
contradicts the Watson opinion.38
With the Watson and Branham opinions, South Carolina
jurisprudence wades even deeper into the frustrating and foggy
doctrine used to establish if OSI are “substantially similar” and
admissible in design defect cases. Watson overturned the trial
court’s inclusion of thirty-five incidents of sudden acceleration as
not substantially similar,39 yet, just months later, the court
allowed records of rollovers that were little more than statistics
35.
36.
37.
38.
39.
690
Id.
Id.
Id. at 20–21.
Watson, 699 S.E.2d 169,179 (S.C. 2010).
Id.
2012]
Daubert in Design Defect Cases
to be admitted into evidence.40 As seen with Watson’s theory of
EMI, design defect cases are becoming more and more technical
as products advance. In order to properly adjudicate these types
of cases, courts must consistently admit evidence of OSI. Courts
are already familiar with the most reliable and accurate method
for evaluating scientific and technical evidence; this method
simply needs to be applied in the design defect arena. Daubert41
principles should be used in order to properly evaluate the
relevance and admissibility of each potential OSI offered by a
party in a design defect case.
II. BACKGROUND
To assert a claim for products liability in South Carolina, the
plaintiff must establish: (1) the product in question caused his
injury, (2) the product was in substantially the same condition at
the time of the accident as when it left the manufacturer, and (3)
the plaintiff’s injury occurred because the defective product was
unreasonably dangerous.42 Branham held the Restatement
(Third) of Torts: Products Liability § 2(b) (1998) should be used to
analyze design defect cases.43 Plaintiffs are now required to
establish that there was a reasonable alternative design
available to the manufacturer at the time the product in question
was produced.44 In addition, Branham held that plaintiffs cannot
introduce post-distribution evidence to prove liability.45 Parties
must remember these overall requirements, as well as
restrictions on evidence, when courts consider the admissibility
40. Branham, 701 S.E.2d at 20–21. Watson was originally issued in March
of 2003 and then was withdrawn. Watson v. Ford Motor Co., No. 26786, 2010
WL 916109 (S.C. Mar. 15, 2010). It was reissued with changes to the holding
involving aspects of the products liability claim unrelated to the four-part test
for substantial similarity. Watson, 699 S.E.2d at 179. The Watson test was
repeated in full in the Branham holding. Branham, 710 S.E.2d at 20.
41. Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).
42. Branham, 701 S.E.2d at 8 (citing Madden v. Cox, 328 S.E.2d 108, 112
(S.C. Ct. App. 1985)).
43. Id. at 14–15. This was in contrast to the state legislature’s adoption of
the Restatement (Second) of Torts § 402(A), which is codified at S.C. CODE ANN.
§ 15-73-10 (2005).
44. Id. at 13–16.
45. Id. at 17–18.
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of potential OSI.
A party to a design defect suit, a subclass of products
liability, may try and establish one or more of the required
elements of the claim, or defend against it, through the
introduction of other incidents.46 These other incidents must be
deemed substantially similar by the court47 and be used for a
purpose deemed appropriate by that jurisdiction before they are
introduced into evidence.48
A. What are Other Similar Incidents?
Other incidents, which are totally unrelated to the present
claim, can be a very powerful form of evidence49 if they bear some
resemblance to the claim and are therefore relevant under Rule
401 of the South Carolina Rules of Evidence.50 Many parties to
various types of civil suits use this form of evidence.51 Some of
the uses for OSI in design defect cases include establishing
notice, causation, defect, appropriateness of punitive damages,
46. 2 J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW: LIABILITY &
LITIGATION § 27.82 (rev. ed. 1989); 2 DAVID G. OWEN, M. STUART MADDEN &
MARY J. DAVIS, MADDEN & OWEN ON PRODUCT LIABILITY § 27:4 (3d ed. 2000).
47. AM. L. PROD. LIAB. § 30:30 (3d rev. ed. 2008). “Substantially similar” is
not a term used in any of the federal rules; see Jonathan M. Hoffman, If the
Glove Don’t Fit, Update the Glove: The Unplanned Obsolescence of the
Substantial Similarity Standard for Experimental Evidence, 86 NEB. L. REV.
633, 642 (2008) (discussing how demonstrative evidence in design defect cases is
also judged by the substantially similar standard and this standard pre-dates
Daubert and is not mentioned anywhere in the Federal Rules of Evidence).
48. Jonathan R. Friedman & Matthew S. Knoop, A Wolf in Wolf’s
Clothing—Other Incident Evidence in Aviation Litigation, 73 J. AIR. L. & COMM.
441, 450 (2008).
49. Id. at 441.
50. Rule 401 states that “‘relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the
evidence.” S.C. R. EVID. 401 (emphasis added). Rule 401 of the Federal Rules of
Evidence is identical to the South Carolina rule. FED. R. EVID. 401.
51. See Francis H. Hare, Jr., Admissibility of Evidence Concerning Other
Similar Incidents in a Defective Design Product Case: Courts Should Determine
“Similarity” by Reference to the Defect Involved, 21 AM. J. TRIAL ADVOC. 491, 491
(1998). See generally, Brian L. Porto, Annotation, Admissibility of Evidence of
Other Crimes, Wrongs, or Acts Under Rule 404(b) of the Federal Rules of
Evidence, in Civil Cases, 171 A.L.R. FED. 483 (2001).
692
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Daubert in Design Defect Cases
and refuting a defense.52 The justifications for the admission of
OSI depend on the jurisdiction.53 For example, Virginia courts
hold that OSI are allowed only to show the manufacturer had
notice or actual knowledge of the possible defect,54 while South
Carolina courts hold that OSI are admissible when they have a
tendency to prove some fact in dispute.55 For other incidents to
qualify as admissible evidence, a court must find a valid purpose
for admission before deeming it substantially similar to the
present case.56 The focus and factors considered in determining
substantial similarity varies by jurisdiction.57 The trial judge
has sole discretion in interpreting and applying the jurisdiction’s
standards and will only be reversed for an abuse of discretion.58
Due to these often vague standards and the difficultly in
reversing the trial judge, there are several issues that concern
defendants, especially when dealing with OSI: undue prejudice
and the manner in which the OSI comes into evidence.
In design defect cases, this type of information is analogous
to character evidence in other types of civil cases.59 Rule 404(b)
of the South Carolina Rules of Evidence states in part,
“[e]vidence of other crimes, wrongs, or acts are not admissible to
prove the character of a person in order to show action in
conformity therewith.”60 Like the effect of character evidence,
jurors tend to think that because the manufacturer has had a
problem with a product, the defect must have caused the injury
52. Friedman & Knoop, supra note 48, at 450–51.
53. Id. at 450.
54. E.g., Blevins v. New Holland N. Am., 128 F. Supp. 2d 952, 960–61
(W.D. Va. 2001).
55. E.g., Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010).
56. AM. L. PROD. LIAB., supra note 47. Substantially similar is not a term
used in any federal rules. Hoffman, supra note 47, at 642.
57. See Friedman & Knoop, supra note 48, at 447–48; WALTER R.
LANCASTER & DAMIAN D. CAPOZZOLA, EXPERT WITNESSES IN CIVIL TRIALS § 9:10
(2011). Some jurisdictions look to causation, while others analyze causation
and the facts surrounding the incident. James L. Ward, Jr., Automobile
Products Cases, WINTER 2008 AM. ASS’N JUST. CONTINUING LEGAL EDUC. 555.
58. Frederick E. Blakelock & Michael R. Boorman, Attacking the
Admission of OSI Evidence, FOR THE DEF., Dec. 2006, at 49–51.
59. See Ward, supra note 57.
60. S.C. R. EVID. 404(b).
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in the present case.61 OSI can cause some jurors to jump to
conclusions and not carefully examine all the evidence.62 In
contrast, plaintiffs could have difficulty convincing a jury that a
group of products are defective and unreasonably dangerous
when one person brings suit.63 For these reasons, South Carolina
and several other jurisdictions deem OSI extremely prejudicial
and require a stringent standard of admissibility.64
The manner in which a party presents OSI evidence raises
another concern. Ways of introducing OSI include: compilations
of accident information from government agencies, other
complaints, fact witnesses from other events, expert witnesses,
and records created and maintained by the product’s
manufacturer.65 When considering expert testimony, the Federal
Rules state that an expert must be qualified, use sound
methodology, and reliably apply that methodology to the facts at
hand.66 South Carolina courts interpret state rules in a similar
manner.67 The federal courts use Daubert v. Merrell Dow
Pharm., Inc.68 and Kumho Tire Co., v. Carmichael69 for guidance
in determining if expert testimony meets these requirements.
Additionally, plaintiffs introduce OSI through the testimony of
lay or fact witnesses.70 Though controversial, this testimony
61. See LANCASTER & CAPOZZOLA, supra note 57.
62. See Friedman & Knoop, supra note 48, at 448 (quoting Gardner v. So.
Ry. Sys., 675 F.2d 949, 952 (7th Cir. 1982)).
63. Dev Sethi, Ten Tips for Proving the Strict Products Liability Case, 2
AM. ASS’N FOR JUST. CONTINUING LEGAL EDUC. 2299 (2007); see Ward, supra note
57; Hare, supra note 51, at 495.
64. See Branham v. Ford Motor Co., 701 S.E.2d 5, 19–20 (S.C. 2010) (citing
Whaley v. CSX Transp. Inc., 609 S.E.2d 286, 300 (S.C. 2005)).
65. AM. L. PROD. LIAB., supra note 47; 2 LEE & LINDAHL, supra note 46.
66. The federal court system evaluates expert testimony in consideration of
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); see also FED. R. EVID.
701, 702, 703.
67. The language of South Carolina’s Rule 702 was not updated after the
United States Supreme Court announced Daubert, however, the soundness of
the expert’s methodology and reliability of the methodology to the facts was
addressed in a similar manner in the South Carolina case State v. Council, 515
S.E.2d 508, 517–18 (S.C. 1999) (citing State v. Jones, 259 S.E.2d 120, 124–25
(S.C. 1979). See S.C. R. EVID. 702.
68. 509 U.S. 579 (1993).
69. 526 U.S. 137 (1999).
70. AM. L. PROD. LIAB., supra note 47; see Tab Turner, Proving Design
Defects with Other Similar Incidents Evidence, TRIAL, Mar. 1999, at 42, 44
694
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Daubert in Design Defect Cases
presents evidence in a powerful way.71 Some commentators
believe these witnesses are “trustworthy” and “impartial.”72
Others believe these witnesses are biased73 because they have
personally suffered an injury while using a similar product and
have their own claim, or they may have witnessed their friend or
loved one being injured.74 At the outset of each case, a prudent
attorney will identify what constitutes an OSI, if the other
incidents presented qualify, and whether other evidentiary rules
apply.
B. Recent South Carolina and Other Relevant Case Law
Involving Other Similar Incidents
South Carolina design defect litigation involving OSI does
not differ from that of the rest of the country. Numerous
decisions use unclear OSI standards making their rulings appear
result driven.75 Additionally, because a trial judge will only be
overturned for an abuse of discretion, these rulings persist and
create a murky area of law.76 Brewer v. Morris, one of the early
modern cases in South Carolina dealing with the admission of
OSI, involved an incident where a crop duster negligently
sprayed insecticide causing damage to several cars’ finishes.77
(stating the most effective form of OSI testimony is from an accident victim
involved in an OSI); Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010)
(noting that the plaintiff introduced testimony of lay witnesses involved in OSI);
cf. Nissan Motor Co., v. Armstrong, 145 S.W.3d 131, 143 (Tex. 2004) (noting
that four lay witnesses proposed by the plaintiff could not verify the defect. One
had his own case dismissed and was sanctioned $125,000 for pursuing a
frivolous suit, two others had their suits dismissed, and the last witness was
claiming a different defect). Contra Hare supra note 51, at 508 (arguing that
lay witnesses are impartial and highly trustworthy because they have no
interest in the outcome of the case).
71. See Hare, supra note 51, at 495.
72. Id. at 508.
73. Robert A. Sachs, “Other Accident” Evidence in Product Liability
Actions: Highly Probative or an Accident Waiting to Happen?, 49 OKLA. L. REV.
257, 260 (1996); cf. Armstrong, 145 S.W.3d at 143 (noting all but one of the lay
witnesses had their own claims which had been dismissed, including one
plaintiff being sanctioned $125,000 for bringing a frivolous suit).
74. Id.
75. See LANCASTER & CAPOZZOLA, supra note 57.
76. See id.
77. 239 S.E.2d 318, 318–19 (S.C. 1977).
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The appellate court considered whether the trial judge properly
excluded evidence of other incidents where insecticide damaged
cars’ finishes in unconnected cases.78 The court held that
“[e]vidence of similar accidents, transactions, or happenings is
admissible in South Carolina where there is some special relation
between them which would tend to prove or disprove some fact in
dispute.”79 The court in Brewer stated this special relationship is
based on “relevancy, logic, and common sense.”80
Though not a South Carolina case, Buckman v. Bombardier
Corp. significantly contributed to the development of design
defect cases in South Carolina.81 This oft-cited opinion is an
order from the Eastern District of North Carolina, which was the
result of a motion in limine hearing.82 The case involved an
accident where a jet ski’s engine allegedly cut off, resulting in a
collision with another vessel causing injury to the driver, Zane
Buckman.83 The motion in limine involved numerous issues and
addressed OSI in several different ways.84 However, the court
held before any evidence of other incidents could be admitted, the
proffering party must establish the following: “(1) the products
are similar; (2) the alleged defect is similar; (3) causation related
to the defect in the other incidents; and (4) exclusion of all
reasonable secondary explanations for the cause of the other
incidents.”85
78. Id. at 319.
79. Id. (citing Tuner v. Wilson, 86 S.E.2d 867 (S.C. 1977)) (emphasis
added).
80. Id. (citing Gantt v. Columbia Coca-Cola Co., 7 S.E.2d 641 (S.C. 1940)).
81. 893 F. Supp. 547 (E.D.N.C. 1995).
82. Id. at 550 (both the plaintiff and defendants had issues to be decided
during this hearing). Buckman is cited by all the South Carolina cases
mentioned in this Note dealing with OSI after its issuance. Branham v. Ford
Motor Co., 701 S.E.2d 5, 20 (S.C. 2010); Watson v. Ford Motor Co., 699 S.E.2d
169, 179 (S.C. 2010); Whaley v. CSX Transp., Inc., 609 S.E.2d 456, 483 (S.C.
2005). The case is also cited in many articles and treatises. See LANCASTER &
CAPOZZOLA, supra note 57; AM. L. PROD. LIAB., supra note 47; Friedman &
Knoop, supra note 48.
83. Buckman, 893 F. Supp. at 562–63.
84. Id. at 552–53. The plaintiff sought to introduce OSI to show notice, to
impeach the defense witnesses, and to show the defendant did not properly test
the stop switch, which he claims is defective. Id. at 552.
85. Id. (referencing Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322,
1332 (8th Cir. 1985) & Uitts v. General Motors Corp., 411 F. Supp. 1380, 1383
696
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Daubert in Design Defect Cases
First, Buckman sought to introduce other incidents through
evidence from other, unconnected lawsuits.86 He wanted the
plaintiff from another suit, John Cotter,87 to testify and to have
the Cotter complaint admitted.88 The court again emphasized
that the factual foundation must be laid in consideration of the
aforementioned test.89 If these qualifiers were met then Cotter
should have been allowed to testify, but the contents of his
complaint were irrelevant and inadmissible under Rule 403 of
the Federal Rules of Evidence.90 Second, Buckman wanted to
bring in Cotter’s expert witness to testify.91 The court excluded
Cotter’s expert because the testimony listed was vague and he
had not been listed as an expert witness in the present case.92
Returning to South Carolina, Whaley v. CSX Transp., Inc.
first mentioned Buckman in connection with OSI.93 Whaley was
not a products liability case, but rather an employment law case
filed by a worker under the Federal Employers Liability Act.94 In
Whaley, the plaintiff, a train engineer, filed suit after suffering
from heat exhaustion while conducting a train between
Greenwood and Laurens, South Carolina.95 The trial court
allowed Whaley to introduce evidence of physical alterations to
other locomotives96 and evidence of other employees’ complaints
(E.D. Pa. 1974) (aff’d without opinion, 513 F.2d 626 (3d Cir. 1975)). The court,
at this time not having enough of a factual foundation to rule on the
admissibility of the OSI, denied the defendant’s motion, and left it to the trial
court to apply the four-part test. Buckman, 893 F. Supp. at 552.
86. Buckman, 893 F. Supp. at 553.
87. Hereinafter litigation brought by John Cotter will be referred to as the
Cotter case. Buckman’s accident occurred after Cotter’s suit was filed. Id.
88. Id.
89. Id.
90. Id.
91. Id.
92. Id. If an expert has examined the facts of the present cases, even if he
has sound methodology, he cannot reliably apply his methodology to the present
case and give a qualified opinion. See FED. R. EVID. 702; Blakelock & Boorman,
supra note 58.
93. 609 S.E.2d 286, 300 (S.C. 2005).
94. Id. at 291.
95. Id. Whaley continued to suffer from unexplainable health problems
after the event and was unable to work. Id.
96. Id. at 300 (the trial court allowed the introduction of “evidence about
fans, air conditioners, and white-painted roofs on other locomotives.”).
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to the defendant.97 One of the issues on appeal to the South
Carolina Supreme Court was whether the trial court erred in
admitting evidence of OSI.98 This included letters written by the
union to the defendant, and evidence that other employees
suffered heat strokes.99 The court cited Buckman, noting that
the proponent of the OSI must establish a factual foundation
showing the other incidents are substantially similar to those in
the present case.100 The court decided that Whaley had not
established that his situation and the other incidents were
substantially similar; therefore, the trial court erred in admitting
that evidence.101
Watson and Branham, as previously mentioned in Part I, are
the most recent South Carolina decisions to affect the
admissibility of OSI.102 In Watson, South Carolina adopted the
four-part test for the admissibility of OSI in design defect cases
outlined in Buckman.103 Using this test, the South Carolina
Supreme Court reversed the lower court, finding error in
admitting into evidence testimony of a former Ford employee who
read an e-mail that noted there were thirty-five incidents of
unexplained acceleration, as well as the testimony of three other
witnesses who said they had witnessed or experienced a similar
situation.104 The court noted that the issue with the evidence
was that Watson had not established the proper foundation.105
The OSI presented involved vehicles that were different models,
made in different years, and some had the driver’s seat on the
right side of the vehicle.106 Furthermore, the plaintiff failed to
present any expert testimony that an EMI with the cruise control
had caused a sudden acceleration in other incidents.107
97.
98.
99.
100.
101.
102.
Id.
Id. at 292.
Id.
Id.
Id.
Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010); Branham v.
Ford Motor Co., 701 S.E.2d 5 (S.C. 2010).
103. Watson, 699 S.E.2d at 179; see supra note 85 and accompanying text.
104. Id.
105. See id.
106. Id.
107. Id.
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Justice Pleicones agreed in part and dissented in part with
the majority opinion.108 As to the OSI issue, he agreed that the
expert was unqualified and his conclusions were properly
excluded.109 However, his analysis differed in that he saw no
“meaningful distinction” between the proffered OSI and the
present case based on the factors listed in the majority opinion.110
If the plaintiff had used a qualified expert to properly link the
causation between the OSI and the present case, Justice
Pleicones would likely find the OSI admissible.111 Therefore,
under Justice Pleicones’ dissent, a proper foundation with regard
to facts and causation is paramount when presenting OSI as
evidence.112
Branham picked up where Watson left off by acknowledging
the four-part test for determining if an OSI is substantially
similar in design defect cases.113
In Branham, the court
continued by holding that plaintiffs could not prove liability
using post-distribution114 OSI evidence.115 However, when the
defendant argued that under the Watson test pre-manufacture
rollover comparisons were also inadmissible, the court
disagreed.116 The court noted that this evidence was relevant
and admissible.117 At first glance, this appears to contradict the
fourth part of the Watson test, reasonable secondary
explanations.118 Though the court does not directly state that
108.
109.
110.
111.
112.
113.
114.
Id. at 180 (Pleicones, J., concurring in part and dissenting in part).
Id. at 182.
Id.
Id.
Id.
Branham v. Ford Motor Co., 701 S.E.2d 5, 20 (S.C. 2010).
Information that a manufacturer did not know or was unavailable
when the product in question was manufactured and distributed is deemed
post–distribution evidence. Id. at 17. This theory eliminates the use of
hindsight to hold a manufacturer liable. Id.
115. Id.
116. Id. at 20–21.
117. Id.
118. Id. at 20 (noting part four of the Watson test was the “exclusion of all
reasonable secondary explanations for the cause of the other incidents.”).
However, the court did agree with Ford that if there was a known cause of an
incident in the reports and it was not substantially similar to the present case
then it should be excluded. Id. at 21. Under Watson, it seems that the burden
has been placed on the proponent of the evidence to establish that the other
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they are accepting a reduced burden to establish notice, this
approach conforms with those of many jurisdictions.119
Again, Justice Pleicones dissented in part and concurred in
part. This time he did not criticize the court’s determination of
the similarity of the other incidents, but rather at what point in
time the evidence was created.120 In his view, when using OSI
evidence to establish the knowledge of the manufacturer, the
availability of other designs, and the dangers associated with a
particular design, the evidence should be admitted regardless of
whether it occurred before or after manufacturing the product in
question.121
Even though Watson attempted to give more structure to the
analysis of OSI, members of the South Carolina Supreme Court
disagree about when and how this test should be applied.
Whether considering the majority or dissent’s analysis, this
standard is still vague, at best, and would lead to variable
holdings from case to case.122 There is a great need for further
guidance to members of the Bar in order to consistently and
properly analyze these matters. Applying Daubert principles to
the Watson test would create repeatable and sound
interpretation.
incidents are substantially similar because the fourth part of the test is the
exclusion of all other reasonable secondary explanations. See Watson, 699
S.E.2d at 179. However, Branham came out a few months later and appears to
place the burden on the party opposing the admission of the other incidents to
show that there is some other cause or explanation for the other incidents that
warrants exclusion. Branham, 701 S.E.2d at 21.
119. See infra notes 308–11 and accompanying text.
120. Branham, 701 S.E.2d at 27 (Pleicones, J., concurring in part and
dissenting in part) (he is joined in his opinion by Justice Waller).
121. Id. at 27–28.
122. See Carrie R. Frank, Other Similar Incidents: Are They Evidence or
Not?, 2 ASS’N AM. TRIAL LAW. CONTINUING LEGAL EDUC. 2429 (2005) (stating that
since there is no uniform interpretation of substantially similar the philosophy
of a particular court is more determinative as to the admissibility of the
evidence than the relevance or similarity of the OSI).
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C. The Application of South Carolina Case Law to the
Determination of “Substantial Similarity”
In South Carolina, a party must establish several things
before OSI evidence will be admitted.123 First, there must be a
special relationship between the evidence in question and the
current case.124 Next, this special relationship must tend to
prove or disprove some fact in question.125 Once these
requirements are met, the court will look at each piece of
proffered evidence to determine if it is substantially similar to
the facts of the case at hand.126 Courts base these determinations
on the facts surrounding both the proffered evidence and the
facts of the incident at issue.127 After the issuance of the Watson
opinion, courts analyze the above factors in consideration of the
four-part test.128 If a court determines that the proffered
evidence of another incident is substantially similar and qualifies
as an OSI under the Watson test, then the evidence must also
pass the balancing test in Rule 403 of the South Carolina Rules
of Evidence.129 South Carolina courts recognize this type of
evidence can be highly prejudicial and that juries may confuse
the facts and issues between the various incidents; therefore, OSI
should be evaluated and admitted under a “stringent
standard.”130 Last, after meeting all the requirements listed
above, Branham added that plaintiffs cannot use postdistribution OSI evidence to prove liability.131
Another factor to consider in the admission of OSI is the role
123. See Watson, 699 S.E.2d at 179; Branham, 701 S.E.2d at 19–20; Whaley
v. CSX Transp. Inc., 609 S.E.2d 286, 300 (S.C. 2005).
124. Whaley, 609 S.E.2d at 300 (citing Brewer v. Morris, 239 S.E.2d 318,
319 (S.C. 1977)).
125. Id.
126. See Watson, 699 S.E.2d at 179; Branham, 701 S.E.2d at 19–20; Whaley,
609 S.E.2d at 300.
127. See Watson, 699 S.E.2d at 179; Branham, 701 S.E.2d at 19–20; Whaley,
609 S.E.2d at 300.
128. Watson, 699 S.E.2d at 179. See supra notes 86, 103 and accompanying
text.
129. Watson, 699 S.E.2d at 179; Branham, 701 S.E.2d at 19–20; Whaley, 609
S.E.2d at 300.
130. Branham, 701 S.E.2d at 19–20 (citing Whaley, 609 S.E.2d at 300).
131. Id. at 20 (citing Whaley, 609 S.E.2d at 300).
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of the judge. Appellate courts will only reverse a finding of
substantial similarity if a trial judge has abused his discretion.132
The combination of a vague doctrine and the abuse of discretion
standard cause much contention over the issue.133 OSI evidence
is often critical to establishing a case because the current claim
becomes more probable with the admission of OSI than
without.134 A case may not even survive summary judgment if
the OSI is not admitted.135 Yet, looking at the facts, one judge
could deem one incident an OSI while the judge down the hall
would deem the very same evidence inadmissible.136 Therefore,
the extremely time-consuming and costly discovery process that
involves large amounts of document review, numerous
depositions, and finding appropriate experts, could be all for
nothing.137
Applying Daubert standards will negate this
uncertainty, lower the cost of litigation, and achieve the truest
and most fair application of the four-part test when determining
if OSI are substantially similar.138
132. Whaley, 609 S.E.2d at 300.
133. See LANCASTER & CAPOZZOLA,
supra note 57; 2 EDWARD J.
IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 7:25 (2011).
134. Robert A. Sachs, “Other Accident” Evidence in Product Liability
Actions: Highly Probative or an Accident Waiting to Happen?, 49 OKLA. L. REV.
257, 258–59 (1996) (arguing that when considering whether an OSI is
admissible, unless there is a fact in dispute that the OSI makes more or less
probable, it is no longer relevant).
135. See Hare, supra note 51, at 510.
136. See Frank, supra note 122 (stating that since there is no uniform
interpretation of substantially similar the philosophy of a particular court is
more determinative as to the admissibility of the evidence than the relevance or
similarity of the OSI); cf. Hoffman, supra note 47, at 661–62 (discussing the
vagueness of the substantial similarity standard and various courts’
interpretation in relation to demonstrative evidence in products liability suits).
137. See Hoffman, supra note 47, at 668.
138. See Brumbaugh v. Sandoz Pharm. Corp., 77 F. Supp. 2d 1153, 1156–57
(D. Mont. 1999); cf. Hoffman, supra note 47, at 659–60 (discussing using
Federal Rules of Evidence 401, 403, 702, 703, and 105 instead of the
substantially similar standard for demonstrative evidence in products liability
cases). Contra Hare, supra note 51, at 495 (“Expert testimony based on other
incident evidence is a classic example of a situation in which the application of
the Daubert factors is unwarranted.”).
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D. Daubert and its Expanding Effects
The basis and standards of expert testimony have evolved
over time. Expert testimony, originally governed by common law,
was codified in the Federal Rules of Evidence and interpreted by
the United States Supreme Court over the years.139 States have
then analyzed these rules and interpretations and have rejected
them altogether or adopted them in full or in part.140 This
section will discuss how the Supreme Court has interpreted these
standards and rules of evidence and how South Carolina has
incorporated them into its jurisprudence.
1. Daubert and Kumho Tire Holdings
In 1993, the United States Supreme Court interpreted the
Federal Rules of Evidence concerning the qualification of experts
and their testimony in Daubert v. Merrell Dow Pharm.141
Daubert overruled the common law holding in Frye v. United
States,142 that predated the Federal Rules of Evidence.143 Frye
held that before expert testimony is admissible, the underlying
science must be generally accepted within the scientific
community.144 The Daubert court noted that neither Rule 702 of
the Federal Rules of Evidence nor the drafting history of the
federal rules mentioned an absolute prerequisite of general
acceptance by the scientific community.145 The Court intended to
create a more liberal evaluation of the scientific expert testimony
than the Frye standard had permitted.146
The new emphasis focused on the trial judge’s affirmative
139. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 586-87 (1993)
(citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)); Kumho Tire Co., v.
Carmichael, 526 U.S. 137, 141 (1999).
140. See George Vallas, A Survey of Federal and State Standards for the
Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 AM. J.
CRIM. L. 97, 113 (2011) (discussing the number of states that have adopted and
rejected Daubert or some version of Daubert).
141. 509 U.S. 579 (1993).
142. 293 F. 1013 (D.C. Cir. 1923).
143. Daubert, 509 U.S. at 587 (1993) (citing Frye, 293 F. 1013).
144. Frye, 293 F. at 1014.
145. Daubert, 509 U.S. at 588–89.
146. See id. at 588.
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gatekeeping role to ensure that the science, which formed the
basis of the expert’s opinion, was valid as to method and
reasoning, as well as to ensure the expert properly applied the
methodology to the facts of the present case.147 In order to
determine if the presenting party met these standards, the Court
set out five factors for trial judges to consider: (1) if the technique
or theory has been, or can be tested; (2) whether it has been
subjected to peer review and publication; (3) the known or
potential error rate; (4) the existence and maintenance of
standards controlling the technique’s operation; and (5) general
acceptance within the relevant scientific community.148 The
amici curiae briefs in Daubert generally refer to science that
meets these criteria as “good” or “valid” science.149 For the
purpose of the remaining portion of this Note, these terms
describe methods and comparisons that meet these standards.
The Court notes that these five factors are a starting point
for judges; they should consider other pertinent rules of evidence
and the particular situation when determining admissibility.150
The main goal is to make sure that the valid science supports
offered testimony.151 The Court also reminds judges that, under
Rule 706,152 they have the ability to select their own experts to
assist them in these determinations.
Kumho Tire Co. v. Carmichael153 followed and expanded
Daubert to include non-scientific expert testimony.154 In Kumho
Tire, a products liability case, plaintiffs claimed a tire
147. Id. at 592–93.
148. Id. at 592–94.
149. Brief for the Am. Ass’n. for the Advancement of Sci. and the Nat’l Acad.
of Sci. as Amici Curiae in Support of Respondent at 7–11, 19–20, Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (No. 92-102) [hereinafter
Daubert Am. Ass’n. for the Advancement of Sci. et al. Amicus Brief]; Brief of the
Am. Med. Ass’n. et al. as Amici Curiae in Support of Respondent at 11–13,
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (No. 92-102)
[hereinafter Daubert Am. Med. Ass’n. et al. Amicus Brief]. See also infra note
178.
150. Daubert, 509 U.S. at 594–95.
151. Id.
152. FED. R. EVID. 706.
153. 526 U.S. 137 (1999), rev’d Carmichael v. Samyang Tires, Inc., 923 F.
Supp. 1514 (S.D. Ala. 1996).
154. Id. at 141.
704
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Daubert in Design Defect Cases
manufacturer designed or manufactured a defective tire.155 They
claimed the tire’s defective design caused a blowout and resulted
in a car crash that severely injured and killed passengers in a
minivan.156 In support of the plaintiffs, Carlson, an engineer
deemed an expert in tire failure, offered testimony concerning
causation and the nature of the defect.157 He opined in his
deposition testimony that when a blowout occurs, the tire has
either been damaged by a type of misuse called “overdeflection,”
or there was a manufacture or design defect.158 To determine
whether overdeflection occurred, Carlson stated that he would
make a physical observation of the tire in question and look for
four different characteristics of misuse.159 If there are not at
least two of the four characteristics, then he assumed that the
tire suffered from a defect.160 When Carlson observed the tire in
question, he noted that while there were multiple signs of
misuse, those were insignificant and the more logical conclusion
was that the tire was defective.161 Kumho challenged Carlson’s
testimony stating that he used unreliable scientific methodology
and the Court should use Daubert to make a determination on
the matter.162 The Supreme Court agreed with Kumho.163
In evaluating Carlson’s methodology and its application to
the current case, the court agreed with the district court’s
opinion that, while Carlson himself qualified as an expert,
his methodology was unreliable and his testimony was
inadmissible.164 The district court found that the method Carlson
155.
156.
157.
158.
159.
Id.
Id. at 142–43.
Id. at 142.
Id. at 144.
Id. The four signs of overdeflection noted by Carlson included: “(a)
tread wear on the tire’s shoulder that is greater than the tread wear along the
tire’s center; (b) signs of a ‘bead groove.’ where the beads have been pushed too
hard against the bead seat on the inside of the tire’s rim; (c) sidewalls of the tire
with physical signs of deterioration, such as discoloration; and/or (d) marks on
the tire’s rim flange.” Id. (internal citations omitted).
160. Id.
161. Id. at 144–45.
162. Id. at 145.
163. Id. at 153.
164. Id. at 145 (citing Carmichael v. Samyang Tires, Inc., 923 F. Supp.
1514, 1521–22 (S.D. Ala. 1996)).
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used to analyze the data collected from his visual inspection of
the tire at the center of the case fell outside the range of
reliability.165 The Supreme Court even went on to note that
Carlson would have never produced a report of this nature to his
former employer, Michelin.166 While there can be more than one
valid opinion in a given field of study, reliability depends on
whether a particular opinion is among those acceptable within
the scientific community.167 Therefore, it is not only important to
analyze the expert’s qualifications, but also his methods and
their application by using the Daubert standard in order to have
a fair and accurate determination of the relevance of an expert’s
testimony.168
2. Daubert and Kuhmo Tire’s Influence in South Carolina
The United States Supreme Court issued the Daubert
opinion in 1993.169 Yet, as of today, South Carolina has not
adopted the Daubert test for admissibility of expert testimony.170
Instead, in 2009, the South Carolina Supreme Court reaffirmed
the use of four similar factors when determining the reliability of
scientific expert testimony.171 These factors include: “(1) the
publications and peer review of the technique; (2) prior
application of the method to the type of evidence involved in the
case; (3) the quality control procedures used to ensure reliability;
and (4) the consistency of the method with recognized scientific
165. Id.
166. Id. at 157.
167. Id. at 153 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
596 (1993)).
168. Id. at 152.
169. 509 U.S. 579 (1993).
170. South Carolina has not adopted the Federal Rules of Evidence in
whole, but most are very similar if not the same. One difference to take note of
is that Rule 702 of the South Carolina Rules of Evidence was not updated
following the holding in Daubert. State v. Council, 515 S.E.2d 508, 517–18 (S.C.
1999). South Carolina Rule 702 has only the original text of Federal Rules of
Evidence and omits the part of the federal rule, that states: “if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” FED. R. EVID. 702; Council, 515 S.E.2d
at 518 n.15.
171. State v. White, 676 S.E.2d 684, 688 & n.7 (S.C. 2009).
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Daubert in Design Defect Cases
laws and procedures.”172 South Carolina has, however, followed
the Supreme Court’s lead in Kumho Tire when it found that
these qualifiers applied not only to scientific testimony, but also
nonscientific expert testimony.173 South Carolina, like federal
courts, holds that the trial judge has an affirmative gatekeeping
duty concerning expert testimony.174 However, even if the trial
judge qualifies the expert under the above-mentioned standard,
the jury ultimately decides the weight of the testimony.175
In design defect cases, much of the testimony concerning OSI
comes in through expert testimony.176 Depending on the case,
the experts can be scientific or nonscientific in nature. The expert
may testify concerning scientific testing of materials, recreation
of the incident, analysis of statistics, physics surrounding
product design, fire investigation, and numerous other types of
evidence. In the interest of proper and fair adjudication, if a
court allows an expert to testify about OSI and make
comparisons or draw conclusions about the present case, the
court has a duty to evaluate the appropriateness of this
testimony under a measurable standard.177 As seen in the
discussion above, courts are already familiar with Daubert
standards, and can easily adopt them in conjunction with Watson
to evaluate OSI.
III. THE APPLICATION OF A DAUBERT ANALYSIS TO THE
WATSON TEST FOR OSI
Good science is the evaluation of a controlled hypothesis;
thus, eliminating other influences, as much as possible, in order
172. Watson v. Ford Motor Co., 699 S.E.2d 169, 177 (S.C. 2010) (citing State
v. Council, 515 S.E.2d 508, 517 (S.C. 1999)).
173. White, 676 S.E.2d at 686.
174. Watson, 699 S.E.2d at 174.
175. Id. at 174–75.
176. Id.; LANCASTER & CAPOZZOLA, supra note 57.
177. See Watson, 699 S.E.2d at 174 (noting the affirmative gatekeeping
duty of the court in determining the admissibility of evidence); cf. RUSSELL L.
ACKOFF, ET AL., SCIENTIFIC METHOD: OPTIMIZING APPLIED RESEARCH DECISIONS 3
(1962) (arguing that science is more likely to provide a correct answer to a
problem because science uses methodology to investigate an inquiry).
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to arrive at a sound and testable conclusion.178 In contrast, bad
science improperly applies scientific methods and theories.179
Examples of improper methodology and application of theory
include: unaccounted for variables, inaccurate measurements,
ignored or misconstrued data, and incorrect analysis.180 These
situations and others lead to the inability to replicate results and
uncertainty.181 This calls into question the asserted causation
and conclusions of the research, deeming them invalid.182
There are some similarities between science and a trial in the
court of law.183 At a trial, the plaintiff puts forth their theory of
the case and tries to prove it by introducing witnesses and facts
to support their claim in hopes that the trier of fact will find that
the evidence supports their theory. The scientific method differs
from what a lawyer does in a courtroom—a lawyer argues the
evidence fits the conclusion he desires.184 In contrast, it would be
178. See Brief Amici Curiae Nicolaas Bloembergen et al. in Support of
Respondents at 14–15, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993) (No. 92-102) [hereinafter Daubert Nicolaas Bloembergen et al. Amicus
Brief]; Daubert Am. Med. Ass’n. et al. Amicus Brief, supra note 149, at 11–13;
Daubert Am. Ass’n. for the Advancement of Sci. et al. Amicus Brief, supra note
149, at 7–11. “Good” or “valid” science is based on the correct use of the
scientific method in analyzing a question or hypothesis. See Daubert Nicolaas
Bloembergen et al. Amicus Brief, at 14 (citing KARL R. POPPER, THE LOGIC OF
SCIENTIFIC DISCOVERY 32 (1st ed. 1959)). It does not mean that everyone, even
within that particular field or specialty, agrees with what a set of research
shows. See id. at 22. There can be differences of opinion as long as all opinions
are supported by the results of properly conducted research using the scientific
methods and techniques accepted in the field. Id. This is where Daubert and
Frye differ. Compare Daubert, 509 U.S. at 594, with Frye v. United States, 293
F. 1013, 1014 (1923). Frye held that the science must be generally accepted.
293 F. at 1014. This could, and presumably did, close the door on developing
and new science in the courtroom. See Daubert, 509 U.S. at 594–95. Daubert
opened the door by making general acceptance a consideration and not the rule.
Id. As long as the science and methodology behind and expert’s testimony is
sound, it is admissible. Id.
179. See Daubert Nicolaas Bloembergen et al. Amicus Brief, supra note 178,
at 14–15 (stating good science must proper methodology and the results must
be capable of being replicated).
180. See Daubert Am. Med. Ass’n. et al. Amicus Brief, supra note 149, at 9–
15 (discussing steps that must be taken for research to qualify as good science).
181. Id.
182. Id.
183. Daubert Am. Ass’n. for the Advancement of Sci. et al. Amicus Brief,
supra note 149, at 19; see Daubert, 509 U.S. at 596–97.
184. Daubert Nicolaas Bloembergen et al. Amicus Brief, supra note 178, at
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Daubert in Design Defect Cases
bad science for a researcher to force the data to fit his hypothesis;
he must let the data fall where it may.185 In contrast, a lawyer
takes the facts and manipulates them in a manner that makes
his theory plausible when considered by the trier of fact.186 When
an attorney presents evidence that is legally relevant but based
on bad science, juries may be unable to overcome the bias and
recognize that the theories argued are scientifically invalid.187
Therefore, the judge must perform his gatekeeping duties and
keep out evidence that is irrelevant, unfairly prejudicial, or
otherwise inadmissible.188 In design defect cases, the analysis
must continue past relevancy and fairness into a more detailed
10–11; cf. Daubert, 509 U.S. at 596–97 (stating that an important difference in
science and law is that science is open and seeks to revise conclusions as time
progresses, where in a trial, a determination must be made, fairly quickly, in
favor of one side or another).
185. Daubert Nicolaas Bloembergen et al. Amicus Brief, supra note 178, at
10–11.
186. See Daubert Am. Ass’n. for the Advancement of Sci. et al. Amicus Brief,
supra note 149, at 19–20; Daubert Nicolaas Bloembergen et al. Amicus Brief,
supra note 178, at 14–15: cf. Daubert, 509 U.S. at 596–97 (stating that an
important difference in science and law is that science is open and seeks to
revise conclusions as time progresses, where in a trial, a determination must be
made, fairly quickly, in favor of one side or another).
187. South Carolina Rule 401 is the same as the federal rule and states that
a fact is relevant if it has any tendency to make an issue in dispute more or less
probable. S.C. R. EVID. 401; FED. R. EVID. 401. Rule 403 of the South Carolina
Rules of Evidence is the same as Rule 403 of the Federal Rules of Evidence and
allows the judge to exclude otherwise relevant evidence based on the fact that if
the jury were to hear the evidence “its probative value [would be] substantially
outweighed by the danger of unfair prejudice” or would lead to “confusion of the
issues.” S.C. R. EVID. 403; FED. R. EVID. 403. When Daubert was remanded, the
court added another factor to those suggested by the Supreme Court. Daubert
v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). The additional
consideration was whether the expert created his opinions based on research
that he was previously involved with, or if it was solely conducted after he was
hired to testify as an expert witness. Id. The issue is the potential influence
being a hired expert for litigation has on the objectivity of the expert in viewing
the evidence or facts, which could therefore result in a bias conclusion and bad
science. Id. This topic was revisited in Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 152, 157 (1999) when the court held the expert testimony was invalid
not only due to methodology, but application of the method to the particular
facts. Id. at 154–56. The court stated, “[i]ndeed, no one has argued that
Carlson himself, were he still working for Michelin, would have concluded in a
report to his employer that a similar tire was similarly defective on grounds
identical to those upon which he rested his conclusion here.” Id. at 157.
188. See Watson v. Ford Motor Co., 699 S.E.2d 169, 174 (S.C. 2010).
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examination of the technical information.
There is a particular need for caution and examination by the
courts in design defect cases where one party attempts to
introduce evidence of other incidents.189 Though two things may
appear facially similar, how an attorney introduces and explains
them to the jury may be unfairly prejudicial and irrelevant.190 In
a comparison of apples and oranges, differences are obvious and
can be contrasted easily. But, when the determination is
between two different kinds of apples, the differences are far
more difficult to describe. For example, if comparing Red
Delicious and Granny Smith apples, it may be improper to draw
broad, generalized conclusions about one type of apple, or all
apples, based on the characteristics of the other.191 One is sweet
and the other tart. One is green and the other red. Though they
are both apples and grow on trees, there are differences between
them that affect not only their color and taste, but also the
purposes for which they are used.
In contrast, legal relevance is broad and the bar for
admissibility of evidence is low.192 The South Carolina Rules of
Evidence state that evidence is relevant if it has “any tendency to
make the existence of any fact . . . more probable or less
probable.”193 While this is true in the court of law, it is not true
when applying the scientific method to a hypothesis.194
Scientists subject their work to a higher standard. Science is
more than mere unexplained or investigated tendencies and
probabilities––”[v]alid science must also explain and clarify
relationships.”195 The Daubert Court relies on several amici
curiae briefs and provides an extensive discussion on science and
189. See Friedman & Knoop, supra note 48, at 441–42 (discussing the power
and potential prejudicial nature of OSI).
190. Id. at 457–58.
191. See KARL RAIMUND POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY 23–26
(reprint 2003) (6th ed. 2002).
192. See S.C. R. EVID. 401.
193. Id. South Carolina’s rule 401 mirrors the federal rule. See FED. R. EVID.
401.
194. See Daubert Am. Ass’n. for the Advancement of Sci. et al. Amicus Brief,
supra note 149, at 8–9.
195. Id. at 9 (emphasis added).
710
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Daubert in Design Defect Cases
the scientific method.196 They observe that the scientific method
involves developing a hypothesis and testing it to determine if it
is correct and if the results can be duplicated.197 The elements of
an experiment that are not being tested as part of the hypothesis
are controlled so as not to vary the results with extraneous
factors.198 Better controls yield more reliable results to support
or refute the hypothesis.199
Design defect cases are becoming increasingly technical,
scientific, and arise from specialized fields. Good science needs to
be the basis of comparison between incidents in design defect
cases. Since Daubert evaluates the validity of scientific and
technical testimony, its principles are useful in determining the
admissibility of other incidents as OSI.200 The court should use a
Daubert-based approach when determining whether the
circumstances surrounding other events would have a significant
impact on the plaintiff’s hypothesis. This standard should apply
to expert testimony, other incidents that form the basis for the
196. Daubert, 509 U.S. at 589–95.
197. Id. at 593. In Daubert, the amicus curiae briefs repeatedly cite
authority by philosopher Karl Popper to illustrate scientific methodology.
Popper speaks of the validity of scientific statements as follows: “Only when
certain events recur in accordance with rules or regularities, as is the case with
repeatable experiments, can our observations be tested––in principle––by
anyone . . . . Only by such repetitions can we convince ourselves that we are not
dealing with a mere isolated ‘coincidence’, but with events which, on account of
their regularity and reproducibility, are in principle inter-subjectively testable.”
(emphasis added). POPPER, supra note 191, at 23.
198. JENNIFER L. KELSEY ET AL., METHODS IN OBSERVATIONAL EPIDEMIOLOGY
32, Table 2-3 (1986).
199. Id.
200. This is not to say that every factor listed in Daubert should be
considered in every situation. These factors are merely a guideline for the court
to assess validity of comparisons argued by parties. Example: Are these types
of comparisons made in published studies? As the holding in Daubert noted,
the factors listed are guidelines and not an all-inclusive list. Daubert, 509 U.S.
at 593. Similar to epidemiological studies, when considering all the OSI
evidence, it is not very likely that any other incident is going to occur in exactly
the same manner as the incident in the present case. See Hare, supra note 51,
at 516–17 (quoting Campus Sweater & Sportswear Co. v. M.B. Kahn Constr.
Co., 515 F. Supp. 64, 90 (D.S.C. 1979); cf. KELSEY ET AL., supra note 198 (“Since
the time of Henle and Koch, it has become apparent that most diseases can
have several causes, and that one agent can cause several diseases (7,12). In
other words, rarely is a single agent both necessary and sufficient to produce all
cases of a given clinical syndrome.”).
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expert’s opinion, lay witnesses’ testimony, and any other OSI not
introduced through expert testimony. Adopting such a standard
would implement a process that applies “relevancy, logic, and
Methods used to make determinations
common sense.”201
concerning technical or scientific issues should accurately
compare the potential OSI to the present case. Watson attempts
to give some useful guidance surrounding OSI.202 However, until
an accurate and repeatable standard is adopted, the courts will
continue to not only waste their own time and money, but the
time and money of the injured and wrongly accused.203
This Note will apply Daubert standards to the Waston test in
the following order: 1) defect similarity, 2) product similarity, 3)
causation, and 4) exclusion of other reasonable explanations.
The reason for the departing from the order the court uses is due
to the more central issue of the similarity of the defects, rather
than product similarity.204 Causation will be discussed third
because without a relationship between product and defect,
causation is irrelevant.205 The last and most controversial
element is the “exclusion of all reasonable secondary
explanations for the cause of the other incidents.”206
A. Are the Alleged Defects Similar?
The first element to consider of the four-part Watson test is
defect similarity.207 If the defect is not similar in all the potential
OSI as compared to the case at hand, the potential OSI simply
becomes irrelevant since they do not support the basis of the
plaintiff’s case.208 Admission of OSI that do not possess a similar
defect to the present case is what Daubert would deem bad
science because it does not explain or verify any relationship
201. Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010) (citing
Whaley v. CSX Transp., Inc., 609 S.E.2d 286, 300 (S.C. 2005)).
202. Id.
203. See Hoffman, supra note 47, at 661–62.
204. See Ward, supra note 57.
205. Id.
206. Watson, 699 S.E.2d at 179.
207. Id.
208. Id.
712
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Daubert in Design Defect Cases
between the two defects.209 This is also bad evidence in the
courtroom under Rule 401.210 For example, in Brooks v. Chrysler
Corp., the plaintiff claimed that the brake pistons on their car
were defective because a “lip-in” dustboot allowed foreign
material to enter from the bottom of the piston causing it to
freeze.211 The plaintiff sought to introduce a collection of data
from the National Highway Traffic Safety Administration
(NHTSA) involving brake piston seizures.212 During a motion in
limine hearing, the court determined that the information
contained in the NHTSA data generally concerned lip-in
Improper
dustboots that were not properly installed.213
installation led to friction, corrosion, and eventually the potential
for brake seizures.214 The court held these other incidents did not
involve the same defect as alleged by the plaintiff and excluded
them.215 Here, the potential OSI failed to qualify because neither
in science nor in the courtroom did the improperly installed
dustboot give insight into whether the plaintiff was injured by a
defective product.
A subtler example of different defects comes from Watson,
where the plaintiff introduced testimony of three other Ford
Explorer owners who experienced incidents of sudden
acceleration.216 Although each of the vehicles was equipped with
the Next Generation Cruise Control System, it was not
determined whether EMI with the cruise control system
contributed to these incidents.217 At least one witness testified
209. See S.C. R. EVID. Rule 401, 403; FED. R. EVID. 401, 403; cf. discussion
supra note 178 (discussing what makes good versus bad science); KELSEY ET AL.,
supra note 198, at 32 and accompanying text (discussing the proper methods
and controls for epidemiological studies).
210. Id.
211. 786 F.2d 1191, 1192 (D.C. Cir. 1986).
212. Id.
213. Id. at 1193–95.
214. Id. This is different from the plaintiff’s claim that even a properly
installed lip-in dustboot is defective and allows material to enter and corrode
the piston. Id.
215. Id. The appellate court held the trial court did not abuse its discretion
in excluding this information because there is nothing to show that the cause of
the problems in the NHTSA data was the same as the cause of the plaintiff’s
incident. Id. at 1195.
216. Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010).
217. See Watson Final Brief of Appellant, supra note 9, at 21–22.
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he experienced sudden acceleration while the cruise control was
engaged, but admitted that he did not possess the knowledge to
determine causation.218 He also testified he had experienced a
similar problem on two other occasions.219 However, neither of
these incidents occurred while the allegedly defective cruise
control system was engaged.220 Because the plaintiff’s hypothesis
was that the design defect caused cruise control systems to
produce an EMI, the South Carolina Supreme Court correctly
ruled the jury should never have been allowed to hear this
testimony.221 This was the correct result for two reasons. First,
the one instance where the cruise control was engaged, there was
no testimony or evidence that EMI was the cause of the sudden
acceleration.222
Second, in the other two instances, the
supposedly defective cruise control was never engaged.223 The
acceleration could have been the result of any number of
problems.224
Even though this testimony may have met the legal
definition of relevance, it did not meet any standard of valid
scientific methodology that would allow the jury to draw
conclusions about the existence of defects or what the defects
may be.225 Permitting testimony based on bad science to be
introduced as an OSI only exponentially expands the reach of the
bad science and does nothing to make the alleged defect at the
center of the current litigation more or less likely.226
The above-discussed situations are different from the design
218. Id. at 22.
219. Id.
220. Id. at 22–23. Also introduced was the deposition testimony of a former
Ford employee that had been taken in a similar suit. Id. He had given
testimony about thirty-five incidents, which involved sudden acceleration of
Ford Explorers in Britain. Id. There was never a determination as to a cause
of these incidents or whether the cruise control system was somehow involved.
Id. They were simply deemed “unexplained.” Id. at 24.
221. Watson, 699 S.E.2d at 180.
222. Id. at 179.
223. Id.
224. See Watson Final Brief of Appellant, supra note 9, at 22–23.
225. See FED. R. EVID. 401; THE SYSTEMATIC EXPERIMENT 9 (J.C. Gibbings ed.
1986).
226. See Watson Final Brief of Appellant, supra note 9, at 22–23; THE
SYSTEMATIC EXPERIMENT, supra note 225, at 9.
714
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Daubert in Design Defect Cases
defect claim in Branham.227 Branham alleged design defect as to
the suspension chosen by Ford for use in the Bronco II.228 In
every suspension used in the Bronco II, there is a measurable
stability index, which indicates stability, handling capability, and
propensity of the vehicle to rollover.229 When the court allowed in
evidence of other accidents involving the Bronco II, it did not ask:
What is the defect?; Instead, the court asked, is this situation
unreasonably dangerous, and did the defendant know?230
The determination of substantial similarity of an OSI defect
to the present case’s alleged defect is only the first step in the
analysis. The questions that remain to be answered are how the
defect relates to different products, causation, and the possibility
of other reasonable explanations, as explored by the remaining
elements of the Watson test.
B. Are the Products Similar?
The first element listed in the Watson test for determining
whether a potential OSI is substantially similar in a design
defect claim is whether the products are similar.231 This Note
addresses the first element of the test second due to the
possibility of having a defect that is substantially similar in a
product that is not identical to the product in the case at hand.232
Many courts seem to get caught up in the questions: Is the model
the same?; Is the year of production the same?; and Are the
manufacturers the same?233 These questions are only part of the
analysis. Justice Pleicones raises the real issue in the dissenting
227. See Branham v. Ford Motor Co., 701 S.E.2d 5 (S.C. 2010) (allowing in
evidence of other accidents involving the same vehicle in a products liability
action).
228. Id. at 10–11.
229. Id.
230. See id. at 20–21.
231. See Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010).
232. See Sethi, supra note 63.
233. See Turner, supra note 70, at 43 (noting objections over different
models of cars and the fact that there will be various differences in each case
that should go to the weight of the evidence); cf. Blakelock & Boorman, supra
note 58, at 51 (stating a determination of substantial similarity involves, “issues
related to products, time, place and circumstances.” When OSI are at issue, one
should argue differences in model, competitors’ products, surrounding
circumstances, and other differences.).
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portion of his Watson opinion.234 He looks for a “meaningful
distinction” in whether the driver’s seat is on the right side of the
car, or if the car is made in a different year—he finds these
differences have no real significance in the present case.235
Several courts and scholars agree with Justice Pleicones’s
analysis.236 Only after the defect is identified should the
differences in the products be analyzed to determine if these
differences have an effect on the relationship between defect and
causation.237 If there is no change in the relationship between the
alleged defect and the plaintiff’s theory of causation, then
potential OSI are substantially similar under Watson.
In some design defect cases, the apparently small differences
between the OSI product and the product in the present case
may be critically important to the validity of the plaintiff’s
claim.238 While the Watson dissent would dismiss the differences
between the OSI vehicles and those in the vehicles at issue, the
defendant argued and the majority agreed that those differences
undermine the plaintiff’s theory.239 For example, Ford argued
that the route of the wiring and the geometry differed in the
234. Watson, 699 S.E.2d at 180 (Pleicones, J., dissenting).
235. Id. at 182.
236. See Sethi, supra note 63 (using autos as an example discusses that
there are many of the same components and processes used even across brand
names); Blakelock & Boorman, supra note 58, at 51 (stating that the models
need not be the same as long as the defect is the same); Turner, supra note 70,
at 43 (“[O]ne can conclude that the similarity requirement is not designed to be
so strict as to exclude evidence of the real-world consequences of a defect even if
the defect materialized in a model other than the plaintiff’s.”).
237. See Hare, supra note 51, at 520–21. Compare this with the somewhat
analogous element of a products liability case, where the product must be in
substantially the same condition as when it left the control of the manufacturer.
Id. The theory is that if the user has in some way altered the product, it can
make it unreasonably dangerous because it functions in a potentially different
manner and has a different effect for which the manufacturer is not responsible.
The causal link is broken. Id. Here, products may have differences that may
create different cause and effect situations that break the causal link as the
plaintiff tries to establish it. Id.
238. As previously discussed, Justice Pleicones disagreed with the majority
opinion that the placement of the driver’s seat or the year of manufacture
should affect a determination of the products’ similarity and admission of OSI.
Watson, 699 S.E.2d at 182 (Pleicones, J., dissenting).
239. See Watson Final Brief of Appellant, supra note 9, at 21.
716
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Daubert in Design Defect Cases
vehicles where the driver’s seat was on the right side.240 During
cross-examination, Watson’s expert conceded that the exact route
of the wiring was critical to the theory of EMI.241 Under the
proposed standard in this Note, the products cannot be
considered similar if the theory of the defect and causation is
interrupted or destroyed by characteristics that differ between
products. This type of determination should not go to the weight
of the evidence, but to its admissibility.242
Branham exhibits a similar example with potentially a
different outcome.243 The crux of the claim was that the design of
the Bronco II, especially as it related to the suspension, reduced
the vehicle’s stability and increased its propensity to rollover,
As mentioned
thus making it unreasonably dangerous.244
previously, Branham involved a two-wheel drive Bronco II—Ford
also produced a four-wheel drive version that handled better
because it was heavier and had a lower center of gravity.245 Ford
argued this type of difference in a product should exclude other
incidents.246 Here, the products are different, but the defect is the
same––an identical suspension that results in a measured
stability index that is worse than what experts in the field
In this situation, a comparison of an
considered safe.247
unusually high number of rollovers of the heavier, lower fourwheel drive is acceptable because, as noted in a discussion of
causation criteria in epidemiological studies, “[t]he greater the
dose or length of exposure, the greater the likelihood of the
occurrence of disease.”248 Here, good science compares the
240. Id.
241. Id.
242. See Turner, supra note 70 at 43 (noting objections over different models
of cars and the fact that there will be various differences in each case that
should go to the weight of the evidence); cf. Hare, supra note 51, at 520 (arguing
that differences in the surrounding circumstances of the OSI or the model type
should go to the weight, not admissibility).
243. Branham v. Ford Motor Co., 701 S.E.2d 5, 7 (S.C. 2010).
244. Id. at 7–10.
245. Id. at 12.
246. Id. at 20.
247. Id. at 12.
248. KELSEY ET AL., supra note 198, at 32, Table 2–3. The opposing party
can refute this assertion if they establish that the change in the product affects
causation in some manner. See id. Without an increase in rollovers when the
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increased propensity of a vehicle to rollover as the stability
decreases between the four-wheel drive and two-wheel drive
version and finds this supports the hypothesis the suspension is
unreasonably dangerous.249 This is also a clear example of where
the “relevancy, logic, and common sense”250 of Whaley can be
combined with science to negate incorrect legal and scientific
arguments.
C. Is the Causation Related to the Defect in the Other
Incidents?
When determining if a potential OSI meets the criteria set
forth in Watson, the moving party must establish that causation
in the other incidents relates to the alleged defect.251 This allimportant link in the chain ties the defect to the resulting
harm.252 Even if a known defect existed, the plaintiff’s failure to
make this link lets the manufacturer off the hook for liability.253
Plaintiffs attempt to link causation using several types of
evidence, including: analysis of other incidents from customer
complaints and data, reports compiled by government agencies,
expert witness testimony, and demonstrative tests.254
product is altered and stability reduced, the plaintiff’s claim would be refuted.
See id.
249. See supra note 178.
250. Whaley v. CSX Transp., Inc., 609 S.E.2d 286, 300 (S.C. 2005).
251. See Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010) (noting
that South Carolina does not recognize res ispa loquitur and cannot rely on the
fact there was an accident to prove a products liability case). However, not all
courts require that causation be established in order to prove a products
liability case. Friedman & Knopp, supra note 48, at 450.
252. Watson, 699 S.E.2d at 179.
253. Brooks v. Chrysler Corp., 786 F.2d 1191, 1195 (D.C. Cir. 1986) (stating
that even if the dustboot was defective because it was hard to properly install
and resulted in brake seizures, this was not the defect and causation claimed by
the plaintiff).
254. See AMERICAN LAW OF PRODUCTS LIABILITY, supra note 47. However,
the determination or linking of causation should not come in by way of lay
witness testimony, because they do not generally possess the technical,
scientific, or specialized knowledge to determine the specific cause of the
incident. LANCASTER & CAPOZZOLA, supra note 57. If the court deems a lay
person’s testimony is based on an incident that qualifies as an OSI and clears
the other hurdles of evidence, fact witnesses should be limited in their
testimony to a description of their experiences, not their belief of the causation
of the incident. Id.; cf. Buckman v. Bombardier Corp., 893 F. Supp. 547, 561–63
718
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Daubert in Design Defect Cases
Often due to the complex and technical nature of a design
defect case, plaintiffs must have expert testimony explaining
certain issues to the trier of fact.255 Plaintiffs are not required to
present expert testimony or opinion establishing causation in the
potential OSI.256 However, there must be a factual foundation
set forth that eliminates as many variables as possible and
makes it reasonably certain that the defect was the cause of the
injury.257 If the plaintiff lays a proper factual foundation, the
court then has the ability to determine if the variables affecting
the theory of causation are such that they are still within the
range of good science.258
Problems arise when attempting to establish a case with OSI
that do not share similar causation. In Barker v. Deere & Co,
David Barker, the owner of a John Deere tractor was seriously
injured after the log he was towing suddenly popped up and
struck him, causing him to fall from the seat and be run over by
the tractor.259 He brought suit against Deere claiming that the
tractor was unreasonably dangerous because it did not have an
“operator protective system” (OPS) to keep objects from flying
into the area where the driver sat.260 In an attempt to bolster his
claim, Barker’s expert testified to 190 other incidents that
(E.D.N.C. 1995) (holding that while Bombardier employees could testify about
their experiences and knowledge concerning operation, engineering, and effects
of improper maintenance, but they could not speak to causation).
It is
noteworthy to mention that oftentimes if there is an accident report that
qualifies under the Federal Rules of Evidence 803(8), and there are opinions
contained in the report related to the cause of the accident, these opinions are
admissible. Id. at 562–63 (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153
(1988)).
255. See FED. R. EVID. 702; Watson, 699 S.E.2d at 174–75.
256. Often, an expert will testify in numerous cases involving the same
alleged design defect. In some ways this eases the burden on plaintiffs because
the expert is already well acquainted with the issues, has likely already been
qualified as an expert by at least one jurisdiction and has a large base of
knowledge involving potential OSI. See Sethi, supra note 63. However, experts
that are repeatedly testifying about the same alleged defect should be viewed
with some caution by the court if the expert’s general experience with the issue
stems from the courtroom and not the laboratory. See Daubert v. Merrell Dow
Pharm., Inc. 43 F.3d 1311, 1317 (9th Cir. 1995).
257. Daubert, 43 F.3d at 1319-20.
258. See id.
259. 60 F.3d 158, 160 (3d Cir. 1995).
260. Id.
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resulted in the death of the driver.261 The jury awarded Barker
$317,753.262
Deere appealed and the court of appeals found the trial court
erred in admitting the OSI.263 The court of appeals noted that
the 190 other incidents fell into three categories where the death
of the driver occurred when the driver was: “(1) ejected from the
seat; 2) run over; and/or (3) hit by a falling object.”264 Though
Barker was ejected from his seat and run over, no evidence
indicated that the deaths in the other incidents were due to
Deere’s failure to install an OPS on this type of tractor.265 In
addition, Barker presented little factual background on any of
the 190 other incidents and failed to make any link between the
causation he alleged and the other incidents.266 The court of
appeals found that because Barker never established these other
incidents as substantially similar, the trial court erred.267 The
court vacated Barker’s jury award and the case was remanded
for a new trial.268
The OSI evidence problems in Watson were very similar to
the problems in Barker.269 Watson tried to use OSI not only to
further support the claim that this was not an isolated incident,
but also to establish the defect and causation.270 This is a
possible and valid approach of developing a case if no alternative
method exists; however, it is much more difficult as Watson
learned.271 One of Watson’s experts stated the cause of the
accident was EMI with the cruise control system.272 However,
when Watson introduced the OSI to bolster this theory, the
expert failed to establish that the other incidents were caused by
261.
262.
263.
264.
265.
266.
267.
268.
269.
270.
271.
272.
720
Id. at 163.
Id. at 161.
Id. at 163.
Id.
See id.
Id.
Id. at 163, 167.
Id.
See Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010).
Id. at 179.
See id.; Turner, supra note 70, at 43.
Watson, 699 S.E.2d at 173.
2012]
Daubert in Design Defect Cases
EMI.273 There must be a causal link between the OSI and the
present case in order for there to be substantial similarity.274
The court ultimately reversed the lower court, holding these OSI
did not qualify as substantially similar incidents because there
was no link between Watson’s theory of defect and the cause of
the sudden acceleration in the OSI.275
Both Barker and Watson eventually reached an appropriate
outcome based on the OSI evidence presented when considered
with a standard that comports with sound scientific methodology.
Unfortunately, the process was exceedingly long and costly.276
Many people probably cannot imagine the emotional and
monetary cost. With this in mind, courts need to apply Daubert
principles to the analysis of substantial similarity in design
defect cases. Without a more reliable standard, people’s lives will
continue in turmoil for longer than necessary. Attorneys need to
make a reasonable analysis of the claim and the proof required
when meeting with their clients so they can more accurately
advise as to cost, settlement possibilities, and possible litigation
outcomes. Attorneys also need firm standards to rely on when
developing testimony during hearings and trial. The proposition
of analyzing causation may appear overwhelming to some at
first, but as Daubert stated, this is not a proposition where the
court has to determine if the experts’ conclusions are right or
wrong, rather the court need only decided whether or not the
expert used a proper methodology when comparing OSI to the
case at bar.277 That determination asks whether the plaintiff
presents enough facts that fit the proffered theory of causation
273. Id. at 179. There were several people that testified by video deposition
that they had also experienced sudden acceleration of their Ford Explorers, but
none of the witnesses stated that they had their vehicles examined and were
told the problem was caused by EMI. Id.
274. See id.
275. Id.
276. After going through the appeals process, Barker’s judgment was
vacated and he was faced with the daunting possibility of going through the
entire trial process again. Barker v. Deere & Co., 60 F.3d 158, 167 (3rd Cir.
1995). From the date of her accident, nearly eleven years had passed when the
South Carolina Supreme Court reversed the $13 million judgment awarded to
Watson and found in favor of Ford. Watson, 699 S.E.2d at 172, 180.
277. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).
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when considered under valid scientific methodology.278
D. Excluding All Reasonable Secondary Explanations for the
Cause of the Other Incidents
The last and probably the most controversial element of the
Watson test states, “all reasonable secondary explanations for the
cause of the other incidents [should be excluded].”279 Some
jurisdictions hold that plaintiffs need only establish that
causation in other incidents are similar, and surrounding
circumstances are inconsequential to prove liability.280 Other
courts hold that plaintiffs must address the surrounding
circumstances as well as causation.281 However, when a court
only evaluates causation, they are ignoring variables that leave a
gap in the analysis and can lead to erroneous conclusions.282
Courts need to consider the whole picture—not just the single
variable involved in the hypothesis.283 For example, in
Nachtsheim v. Beech Aircraft Corp., the trial court properly
excluded evidence of a second plane crash that involved a similar
plane manufactured by Beech.284 The court of appeals found the
trial court had not abused its discretion in refusing to admit
evidence of the second crash, although both planes had reported
some icing shortly before they crashed.285 In the eyes of the trial
court and the court of appeals, icing before the crash was the only
significant similarity between the two incidents.286 Beech argued
that the second pilot had a history of problems and reported
issues with the instruments; furthermore, the two crashes
were very different in nature.287 The defendant’s arguments
highlighted multiple variables to cast enough doubt on the
278.
279.
280.
281.
282.
Id.
Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010).
Ward, supra note 57.
Id.
See Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L.
REV. 595, 619 (1988); see also Brumbaugh v. Sandoz Pharm. Corp., 77 F. Supp.
2d 1153, 1156 (D. Mont. 1999).
283. See Black, supra note 282, at 619.
284. 847 F.2d 1261, 1269–70 (7th Cir. 1988).
285. Id.
286. Id. at 1269.
287. Id. at 1267.
722
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Daubert in Design Defect Cases
similarity of the second incident. 288 If there are too many
differing variables, then the hypothesis has not been supported
and must be rejected.289 Similarly, the other incidents were not
substantially similar because no certainty existed in a
comparison with that many variables and differences.290
Watson also illustrates this principle. There, the court
excluded the OSI because of the dissimilarities between the
products and Watson’s failure to exclude other explanations for
the accident.291 As noted in Ford’s final brief to the South
Carolina Supreme Court, one of the OSI witnesses, whose
experience had been categorized as “unexplained,” actually
involved surrounding circumstances that differed appreciably.292
Ford’s expert opined that the listed differences pointed to causes
of sudden acceleration, such as “an obstructed throttle body, a
broken throttle spring, a bound up or broken accelerator cable or
speed control cable.”293 None of these were investigated at the
time of the OSI.294 Before the court can deem the incidents
substantially similar, it must be sure that uncontrolled variables
do not unduly affect the proponents’ theories.295 If several valid
and reasonable alternative explanations for another incident
exist, the court does no one justice by ruling that these incidents
are admissible OSI. Even if it is deemed relevant under the rules
of evidence, it should still be excluded as unfairly prejudicial.296
The Watson court correctly found this type of information
inadmissible.297 OSI that involve too many differences are
similar to improper controls in an experiment and, therefore,
does not make the proposed defect any more or less likely to
exist.298
288.
289.
290.
291.
292.
293.
294.
295.
See id. at 1267–70.
See THE SYSTEMATIC EXPERIMENT, supra note 225, at 9.
See Nachtsheim, 847 F.2d at 1267–70.
Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010).
See Watson Final Brief of Appellant, supra note 9, at 21.
Id. at 22–23.
Id. at 22.
See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319–20 (9th
Cir. 1995); KELSEY ET AL., supra note 198, at 32, Table 2–3.
296. See Hoffman, supra note 47, at 656.
297. Watson v. Ford Motor Co., 699 S.E.2d 169, 179 (S.C. 2010).
298. Brumbaugh v. Sandoz Pharm. Corp., 77 F. Supp. 2d 1153, 1157 (D.
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In what can potentially be read as a contradiction between
the holdings of Watson299 and Branham,300 the South Carolina
Supreme Court upheld the trial court in Branham, which
admitted OSI that were part of comparative or statistical
evidence of rollover accidents.301 The court reasoned that this
evidence went to the basis of the claim that the Bronco II was
While Branham allowed the
unreasonably dangerous.302
unexplained OSI into evidence, Watson completely barred OSI
where the plaintiff failed to discount other reasonable
explanations.303 The difference is the purpose for which the
courts admitted the OSI.304 In Branham, the plaintiff used the
OSI with unknown surrounding facts or determined causations
to show that Ford had notice of a defect or unreasonably
dangerous condition in the Bronco II as compared with other
vehicles in its class.305 The Bronco II had a higher rollover rate
than similar vehicles in its class.306 Even though the South
Carolina Supreme Court had just issued the Watson opinion––
which is a more detailed, if not a stricter test for determining if
OSI are substantially similar, and it was repeated in Branham, it
appears that the court may be following other jurisdictions in
relaxing the standard for when the OSI are being used to show
notice.307
Many jurisdictions use a separate or slightly more relaxed
version of their substantially similar test when a plaintiff uses
OSI for the sole purpose of establishing notice.308 If a plaintiff
uses OSI for this purpose only, then the standard of substantially
similar is relaxed; however, there is a strict prohibition on postMont. 1999).
299. 699 S.E.2d 169 (S.C. 2010).
300. 701 S.E.2d 5 (S.C. 2010).
301. Id. at 20–21.
302. Id.
303. Id. at 20; Watson, 699 S.E.2d at 179.
304. See Branham, 701 S.E.2d at 20–21.
305. Id.
306. Id.
307. AM. L. PROD. LIAB. 3d. §30:30 (2008) (noting however that Georgia has
held that the purpose the OSI is offered for is not to be considered when
determining if an OSI is substantially similar); David G. Owen, Proof of Product
Defect, 93 KY. L.J. 1, 25–28 (2004).
308. AM. L. PROD. LIAB. 3d. §30:30.
724
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Daubert in Design Defect Cases
distribution evidence in the area of notice.309 When this occurs,
the opposing party should ask the court to issue a limiting
instruction to the jury and take special notice of the Rule 403
balancing test to determine if the proffered evidence will be
unfairly prejudicial.310 Therefore, when an attorney evaluates
whether the OSI are substantially similar, he must also consider
the purpose behind introducing the OSI into evidence.311
IV. ARGUMENTS AGAINST STRINGENT ANALYSIS OF OSI
Some in the legal community, besides disagreeing with the
rationale of the proposal presented in this Note, would argue that
this approach to determining the admissibility of OSI would be
too technical, result in numerous trials and mini-trials, and be
too time consuming for trial judges to implement.312 Though
kernels of truth exist in each of these statements, they are
overcome by the need for proper determination of the
admissibility of the evidence, a restraint on propagating false
comparisons and proof, and proper adjudication of the case.
The argument that judges do not have the expertise to
implement the technical aspects of this standard were addressed
by the Court in Daubert and were again argued by the Ninth
The Court had
Circuit’s Daubert opinion on remand.313
confidence in the judges across the country. The fact that many
state courts have adopted Daubert or similar standards in the
nearly twenty years since the decision came down shows that the
309. Id. (noting, however, that Georgia has held that the purpose the OSI is
offered for is not to be considered when determining if an OSI is substantially
similar); David G. Owen, Proof of Product Defect, 93 KY. L.J. 1, 25–28 (2005).
Note that in the Branham decision the court held there is a ban on postdistribution evidence for all purposes. Branham v. Ford Motor Co., 701 S.E.2d
5, 20–21 (S.C. 2010).
310. Hoffman, supra note 47, at 663.
311. See id.
312. See Blakelock & Boorman, supra note 58, at 52 (noting that mini-trials
outside the presence of the jury are required (citing Nachtsheim v. Beech
Aircraft Corp., 847 F.2d 1261, 1269 (7th Cir. 1988))); Turner, supra note 70, at
47.
313. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 595–97 (1993). See
Daubert v. Merrell Dow Pharm., 43 F.3d 1311 (9th Cir. 1995).
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states find the Court’s solution not only appropriate, but also a
standard that can be implemented locally.314 Considering the
regular use of Daubert and similar standards, the application of
this standard to a similar area of law is something courts can
accomplish without undue burden.
As to the objection that this approach would result in minitrials, not only is this already happening in that there are often
extensive motion in limine hearings related to expert testimony,
but these can speed up the trial once it begins.315 The objections
are limited and the trial does not stop and start with juries being
escorted in and out of the courtroom as there are extensive
discussions and questioning of witnesses.316
In courts around the country, OSI are such an important part
of products liability cases that the courts need to take time in
deciding the admissibility of evidence that can lead to dismissal
on a summary judgment motion or seal the case for the plaintiff.
On the other hand, the OSI may cause the jury to find against
the defendant without carefully considering the differences or the
possible lack of causal connection between the OSI and the
present incident. Product defect cases in combination with the
desire of the national media to create exciting news stories,
plaintiffs’ attorneys’ broad reaching advertising, and the amount
of money involved can create a landslide of claims. Not that this
Note is in any way advocating that defendants should not be held
liable for any defective product that they place in the stream of
commerce, but in light of the mentioned factors, courts need to
look closely at OSI to make sure they are substantially similar
314. See George Vallas, A Survey of Federal and State Standards for the
Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 AM. J.
CRIM. L. 97, 113 (2011) (discussing the number of states that have adopted and
rejected Daubert or some version of Daubert).
315. See Friedman & Knoop, supra note 48, at 458 (citing Farley v. Cessna
Aircraft Co., Civ. A. No. 93-6948, 1996 WL 37823 (E.D. Pa. Jan. 25, 1996),
where the trial judge noted the technical nature of the evidence and the number
of other incidents that the plaintiff was arguing were OSI, it would take weeks
to complete the process and subject the jury to numerous witnesses that were
not involved with the case. The court excluded all the offered evidence related
to these OSI.).
316. See Turner, supra note 70, at 42 (“Other similar incidents (OSI)
evidence is the most powerful weapon in the plaintiff attorney’s arsenal for
persuading the jury that a vehicle is defective.”).
726
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Daubert in Design Defect Cases
before they are admitted into evidence. For example, in 2009 and
2010, reports of “runaway Toyotas” blamed on the car’s
electronics suddenly inundated the country.317 In February 2011,
the NHTSA cleared Toyota on this alleged defect, but found
problems with the floor mats and gas pedals that stuck.
However, many current claims by Toyota owners may or may not
relate to any one of these three problems, yet defendants face the
risk that all of these defects will end up as OSI in the courtroom
if courts do not carefully consider each defect prior to admission.
V. CONCLUSION
The admission of OSI in design defect cases has long been a
source of contention in the courts due to vague standards,
improper use, and the strong influence it can have on juries. The
South Carolina Supreme Court has taken a step forward to
diminish these problems with the adoption of the four–part test
in Watson.318 However, application of the Watson test is still
unclear. Further guidance is needed in order to ensure a proper
and repeatable analysis of the admissibility of potential OSI.
After the Supreme Court’s Daubert holding in 1993, courts
across the country have used factors that help identify good
science as the basis for admissibility of proffered scientific expert
testimony.319 The basis of good science is sound use of the
scientific method, which results in a meaningful analysis of a
question or situation. Comparisons of potential OSI to the
incident in the present case should be consistent with good
science. If there are too many dissimilarities or uncontrolled
variables, the comparison is void. Even if admissible under the
low standard for legal relevance, OSI based on bad science do
little but lead juries down the incorrect path. Failure to adopt
further guidance in the determination of the admissibility for
potential OSI will only grow as society and products become more
technologically advanced. In addition, a combination of Daubert
principles with the four–part Watson test creates a solid
317. Amanda Bronstad, 9th Circuit Agrees to Hear Early Appeal in Toyota,
NAT’L. L.J. (Nov. 17, 2011), http://www.law.com/jsp/article.jsp?id=1202532810
07.
318. Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010).
319. See Daubert, 509 U.S. 579 at 592–93 (1993).
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framework on which lawyers and judges alike can rely. This
standard is repeatable, reduces confusion, is familiar to the
courts, and applies logic and common sense to the determination
of admissibility of OSI. Like removing the blindfold from an
archer’s eyes as he tries to shoot an apple off someone’s head,
adopting this standard would provide both lawyers and judges
alike, a clear line of vision to the final target, a reliable way to
determine the admissibility of OSI.
728
TWOMBLY, IQBAL, AND THE RISE OF
FRAUDULENT JOINDER LITIGATION
Kevin L. Pratt*
I.
II.
III.
IV.
V.
INTRODUCTION .............................................................. 729
FRAUDULENT JOINDER: HISTORY AND
APPLICATION .................................................................. 741
A. History......................................................................... 742
B. Applying Fraudulent Joinder Today .......................... 748
TWOMBLY, IQBAL, AND THE RULE 12(B)(6)
MOTION: A PROXY FOR THE FRAUDULENT
JOINDER ANALYSIS ....................................................... 755
A. The Evolution of the Federal Pleading Standards ...... 757
B. The Federal Pleading Standards And Fraudulent
Joinder: Two Doctrines Converge ............................... 761
PIERCING THE PLEADINGS: DISPELLING THE
FEDERALISM CONCERNS OF USING A
RULE 12(B)(6) STANDARD AT THE FIRST
STAGE OF THE FRAUDULENT JOINDER INQUIRY .. 765
CONCLUSION .................................................................. 771
I. INTRODUCTION
On January 30, 2009, the children of David and Virginia
Nelson were killed when a window-heating unit exploded and set
fire to their home.1 The Nelsons, as personal representatives of
* Member of Volume VI of the Charleston Law Review; J.D. Candidate 2012,
Charleston School of Law; M.A. in Communications, College of Charleston
Graduate School; B.A. in English, Elon University. Thank you to the editors
and executive board of the Charleston Law Review for this opportunity and
their hard work improving this Note. Also, thank you to Professors Geiza
Vargas-Vargas, William Janssen, and Sheila Scheuerman because without
them, this Note would not be published. Special thanks to Jared Williams, a
fellow Charleston Law Review member, for sharing some of his experience as an
extern in a South Carolina District Court and providing helpful anecdotes for
the way district court judges handle Rule 12(b)(6) motions.
1. Complaint at 3, Nelson v. Whirlpool Corp., 668 F. Supp. 2d 1368 (S.D.
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the estates of their deceased minor children, brought a products
liability and negligence action against Whirlpool Corporation,
Lowe’s Home Centers, Inc., and Clarke-Washington Electric
Membership Corporation (Clarke).2 The Nelsons filed the action
in Alabama state court because Clarke was a local defendant who
defeated the complete diversity of the foreign defendants—Lowe’s
and Whirlpool.3 The foreign defendants removed the action to
Ala. 2009) (No. CV-2009-900056).
2. Complaint at 4–6, Nelson, 668 F. Supp. 2d 1368 (No. CV-2009-900056).
3. Id.; Notice of Removal at 5, Nelson, 668 F. Supp. 2d 1368 (No. CV-2009900056). Generally, plaintiffs prefer state courts because they perceive them as
more sympathetic forums. See Paul Rosenthal, Improper Joinder: Confronting
Plaintiffs’ Attempts To Destroy Federal Subject Matter Jurisdiction, 59 AM. U. L.
REV. 49, 57 (2009). In fact, “a case does not receive the same treatment or have
the same chance of success in federal court as it does in state court, especially
when local plaintiffs sue large, out-of-state corporations.” Id. (citing Note,
Forum Shopping Reconsidered, 103 HARV. L. REV. 1677, 1695 (1990)). “Aside
from the advantage of litigating in a geographically convenient forum, plaintiffs
filing in state court often hope to exploit this real or perceived bias. . . . [That]
the state forum chosen is a so-called ‘magic jurisdiction.’” Rosenthal, supra.
“Magic jurisdictions” are venues “well-known for coming in with high plaintiff
verdicts.” See Symposium, A Novel Approach to Mass Tort Class Actions: The
Billion Dollar Settlement in the Sulzer Artificial Hip and Knee Litigation, 16
J.L. & HEALTH 169, 190 (2001–02). Richard “Dickie” Scruggs, expanded on the
meaning of this term by stating:
What I call the “magic jurisdiction,” [is] where the judiciary is elected
with verdict money. The trial lawyers have established relationships
with the judges . . . and it’s almost impossible to get a fair trial if
you’re a defendant in some of these places. . . . Any lawyer fresh out of
law school can walk in there and win the case, so it doesn’t matter
what the evidence or law is.
Am. Tort. Reform Found., Judicial Hellholes 2011–2012, at 1 (2011)
[hereinafter Judicial Hellholes 2011] (internal quotation marks omitted)
(quoting Scruggs, a “legendary Mississippi trial lawyer who built an empire of
influence suing tobacco companies, HMOs and asbestos-related companies, but
who has since been disbarred and sentenced to federal prison after pleading
guilty to conspiracy in an attempt to bribe a judge.”), available at
http://www.judicialhellholes.org/wp-content/uploads/2011/12/Judicial-Hellholes2011.pdf.
The American Tort Reform Association evaluated the country’s worst
magic jurisdictions and placed the tag “judicial hellholes” on “places where
judges systematically apply laws and court procedures in an unfair and
unbalanced manner, generally against defendants in civil lawsuits.” Am. Tort
Reform Found., Judicial Hellholes 2007, at ii (2007) [hereinafter Judicial
Hellholes 2007], available at http://www.atra.org/reports/hellholes/2007/
hellholes2007.pdf. For 2011-12, the list of “hellholes” included Philadelphia;
California; West Virginia; South Florida; Madison and St. Clair Counties,
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Fraudulent Joinder Litigation
federal court because the Nelsons failed to include specific facts
implicating Clarke’s involvement with the heater that caused the
fire.4 At the hearing on plaintiff’s motion to remand, the
defendants urged the court to sustain the removal on the basis of
Rule 11 of the Federal Rules of Civil Procedure (Rule 11) because
the Nelsons’ allegations against Clarke were without evidentiary
support—demonstrating a lack of good faith.5
The Alabama district court denied the motion to remand.
Under the pretext of a Rule 11 analysis, the court expanded the
depth of its inquiry by closely scrutinizing the merits of the claim
against Clarke. Finding that Clarke was fraudulently joined, the
court retained jurisdiction. Emphasizing that the nature of the
fraudulent joinder inquiry is purely jurisdictional, the court
qualified its intrusion in to the merits of the plaintiff’s complaint
under the pretext of a Rule 11 analysis.6 The court determined
the plaintiffs’ allegations that Clarke failed to properly operate
and maintain the electrical distribution lines of the heater were
not facts that stated a claim under the Alabama Extended
Manufacturers’ Liability Doctrine.7
The Nelson court went beyond a subjective inquiry
characteristic of a Rule 11 analysis.8 Instead, the Nelson court
objectively evaluated the merits of the plaintiffs’ claims against
the resident defendant much like courts do when a defendant
files a Rule 12(b)(6) motion to dismiss9 for failure to state a claim
Illinois; New York City and Albany, New York; Clark County, Nevada; and
McLean County, Illinois. Am. Tort Reform Found., Judicial Hellholes 2011,
supra, at 3–4.
4. Nelson v. Whirlpool Corp., 668 F. Supp. 2d 1368, 1376 (S.D. Ala. 2009)
(applying Rule 11).
5. Id. at 1377.
6. Id. at 1378.
7. Id. at 1376–78.
8. Rule 11 evaluates “that to the best of the persons knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances . . . the allegations and other factual contentions [in the
pleadings] have evidentiary support or . . . are likely to have evidentiary
support after a reasonable opportunity for further investigation or discovery.”
FED. R. CIV. P. 11(c).
9. Rule 12(b)(6) states that a motion to dismiss must be granted if the
plaintiff “fail[s] to state a claim upon which relief can be granted.” FED. R. CIV.
P. 12(b)(6).
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under Rule 8 of the Federal Rules of Civil Procedure (Rule 8).10
The disconnect between the standard the Nelson court claimed to
apply, Rule 11, and the actual objective standard deployed, Rule
12(b)(6), illustrates the ambiguity of the typical fraudulent
joinder analysis since the Supreme Court reinterpreted Rule 8 in
Bell Atlantic Corp. v. Twombly11 and Ashcroft v. Iqbal.12
Twombly and Iqbal make it more difficult for plaintiffs to survive
a Rule 12(b)(6) motion to dismiss because the Court now requires
plaintiffs to plead facts with specificity and particularity that
give rise to a plausible theory of recovery.13 Foreign defendants
claiming fraudulent joinder argue that requiring factual
specificity in a federal complaint necessitates plaintiffs to plead
facts specific to a resident defendant’s conduct. If the plaintiff
fails to plead facts specific that give rise to actionable conduct by
the resident defendant, then the court will ignore the joinder of
the local defendant and deny the plaintiff’s motion to remand.14
10. According to Rule 8(a), in order to state a claim for relief, a pleading
must contain “a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the claim needs no
new jurisdictional support; a short and plain statement of the claim showing
that the pleader is entitled to relief; and a demand for the relief sought.” FED. R.
CIV. P. 8(a).
11. 550 U.S. ___, ___, 127 S. Ct. 1955, 1965–66 (2007) (holding that in
order to state a claim under Section 1 of the Sherman Antitrust Act, the
plaintiff must state facts with particularity that raises a reasonable expectation
that an illegal agreement was made, but merely alleging parallel conduct
borders on conclusory and it will not survive a Rule 12(b)(6) motion to dismiss).
12. 556 U.S. ___, ___, 129 S. Ct. 1937, 1954 (2009) (rejecting the plaintiff’s
argument that pleading discriminatory intent generally is sufficient to state a
claim under Rule 8 because the plaintiff failed to provide factual context to the
otherwise conclusory allegation for failing to plead facts).
13. This Note is not an exhaustive detail of Twombly’s and Iqbal’s progeny
or whether these decisions resulted in a statistically significant number of
dismissals for failure to state a claim under Rule 12(b)(6). For a more detailed
analysis of Twombly and Iqbal, see generally William M. Janssen, Iqbal
Plausibility in Pharmaceutical and Medical Device Litigation, 71 LA. L. REV.
541 (2011).
14. See, e.g., Reading v. Archer-Daniels-Midland Co., No. 2:11-CV0045,
2011 WL 3626409, at *3–5 (E.D. Mo. Aug. 16, 2011) (using a 12(b)(6) motion to
dismiss as an analog for determining defendant’s fraudulent joinder claim, but
granting plaintiff’s motion to remand because the court did not dismiss the
negligent misrepresentation claim against the resident defendant on a Rule
12(b)(6) motion, thus there was a “‘reasonable basis for predicting that Missouri
law might impose liability on the resident defendant”); Garcia v. LG Electronics
USA Inc., Civil Action No. B–11–61, 2011 WL 2517141, at *2–3 (S.D. Tex. June
732
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Fraudulent Joinder Litigation
The similarity between the analysis of a Rule 12(b)(6) motion and
a motion to remand opposing a defendant’s fraudulent joinder
claim has resulted in a significant increase in fraudulent joinder
litigation post-Twombly and Iqbal.15
The requirement of complete diversity and the prohibition on
removing cases involving an in-state defendant give plaintiffs
desiring a state forum the incentive to sue an in-state defendant
Because
to prevent successful removal to federal court.16
23, 2011) (rejecting Rule 8 and a Rule 12(b)(6) motion to dismiss analysis as a
proxy to evaluate the basis of the claim alleged against the local defendant in
fraudulent joinder litigation); Watson v. Gish, No. C 10–03770- SBA, 2011 WL
2160924, at *3 (N.D. Cal. June 1, 2011) (“rejecting [the] contention that [the
federal] pleading standard[s] [are] germane to fraudulent joinder analysis”);
Grinston v. Cypress Media, LLC, No. 10-cv-851-JPG-SCW, 2011 WL 825752, at
*1 (S.D. Ill. Mar. 2, 2011) (ignoring the federal pleading standards post
Twombly and Iqbal because the court “should not and will not be making such
fact-intensive, dispositive rulings at this stage in the litigation”); Sampson v.
Leonard, No. 4:10–CV–121–D, 2011 WL 129634, at *4–5 (E.D.N.C. Jan. 12,
2011) (ignoring the parallels between its analysis of a 12(b)(6) motion to dismiss
the foreign defendant and its analysis on whether the joinder of the local
defendants was proper given the plaintiff’s failure to allege conduct sufficient to
sustain a claim against the local defendants); Uon v. Tanabe Int’l Co., No. 10–
5185, 2010 WL 4946681, at *2 n.3 (E.D. Penn. Dec. 3, 2010) (“accept[ing] any
well-pleaded allegations as true, and resolv[ing] uncertainty in the law
governing the claim at issue in the plaintiff’s favor” but failing to use the
federal pleading standards as a proxy for the fraudulent joinder analysis in part
because the Eighth Circuit has not reconsidered the relationship between the
two standards since Twombly and Iqbal).
15. See infra note 43.
16. A variety of factors contribute to plaintiffs’ general preference to
litigate in state court and defendants’ general preference to litigate in federal
courts. For example, plaintiffs’ attorneys are more comfortable with state courts
and state procedural rules and perceive state court judges as favorable. See
Howard B. Stravitz, Recocking the Removal Trigger, 53 S.C. L. REV. 185, 185 n.1
(2002). Pretrial proceedings in federal court are strictly supervised and are
more costly than they would be in state court. See id. Alternatively, defense
lawyers perceive federal judges as favorable. See id. Federal courts are more
likely to grant summary judgment. See id. Federal courts require unanimous
jury verdicts, while many state courts do not. Compare FED. R. CIV. P. 48
(requiring unanimous jury verdicts), with CAL. CIV. PROC. CODE § 618 (West
2000) (requiring three-fourths of jurors to agree). But cf. S.C. R. CIV. P. 48
(requiring a jury comprised of twelve persons to reach a unanimous verdict,
except when the parties stipulate that the jury consist of any number less than
twelve, upon which a majority verdict will suffice). Finally, empirical evidence
further suggests that removal to federal court favors defendants. See Kevin M.
Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything
About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L.
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plaintiffs generally prefer state courts,17 foreign defendants often
remove cases to federal courts claiming the plaintiff fraudulently
joined a local defendant in order to bring the case in a plaintifffriendly forum.18 While Article III, Section Two of the
Constitution provides that “judicial [p]ower shall extend . . . to
[c]ontroversies . . . between [c]itizens of different [s]tates,”19 the
Supreme Court recognizes an exception allowing a foreign
defendant to remove a case to federal court even when a local
defendant is included in the plaintiff’s claim.20 When a plaintiff
joins, by alleging either a factually insufficient claim or a claim
not legally cognizable, solely to defeat federal jurisdiction, the
plaintiff fraudulently joins the local defendant; and thus, exploits
the requirement for complete diversity.21
REV. 581, 593 (1998) (finding plaintiffs’ overall win rate in federal court is
57.97%, but it is only 36.77% in removed cases).
17. See supra note 3.
18. See, e.g., Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176
(1907).
19. U.S. CONST. art. III, § 2, cl. 1.
Section 1332 of the Judicial Code grants federal district courts original
jurisdiction over cases between “citizens of different states” in which the matter
in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. §
1332(a). The Supreme Court interpreted the diversity statute to require
complete diversity of citizenship. See Carden v. Arkoma Assocs., 494 U.S. 185,
187 (1990). Complete diversity exists when no plaintiff and defendant are
citizens of the same state. Id.
On the other hand, the Supreme Court interpreted the Constitution to
only require minimal diversity. See State Farm Fire & Cas. Co. v. Tashire, 386
U.S. 523, 530–31 (1967). Minimal diversity exists when at least one plaintiff
and one defendant are citizens of different states. Id. Even though the
Constitution clearly authorizes diversity jurisdiction, federal district courts are
courts of limited jurisdiction and can exercise only that jurisdiction that has
been constitutionally authorized by statute. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). By requiring complete diversity and a
minimum amount in controversy in most federal cases, Congress continues to
limit diversity jurisdiction to a subset of cases that fall within the judicial power
conferred by Article III. But see Class Action Fairness Act of 2005, Pub. L. No.
109-2, § 4, 119 Stat. 4, 9 (2005) (extending jurisdiction to certain class actions
involving only minimal diversity).
20. See Wecker, 204 U.S. at 180–81; see also Morris v. Princess Cruises,
Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (“one exception to the requirement for
complete diversity is where a non-diverse defendant has been ‘fraudulently
joined’”).
21. See, e.g., Hartley v. CSX Transp., Inc., 187 F.3d 422 (1999) (upholding
plaintiff’s motion to remand and in effect denying the defendant’s removal on
734
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Fraudulent Joinder Litigation
Courts in the Third, Fourth, and Seventh Circuits note the
heavy burden imposed on the foreign defendant to disprove the
proper joinder of the local defendant.22 Courts impose this
burden on defendants because significant federalism concerns
arise when a case is removed from state court to federal court on
the basis of diversity jurisdiction.23 Federalism mandates that
judicial power coexists with legislative power; and thus, state
courts should have the authority and ability to interpret and
apply their own laws.24 State courts must be allowed to establish
and develop common law.25 Diversity jurisdiction restricts state
judicial power because it authorizes federal courts to hear cases
based on state law.26
Sensitive to these federalism concerns, the Supreme Court
found that “federal courts exercising jurisdiction in diversity of
citizenship cases would apply as their rules of decision the law of
the State, unwritten as well as written.”27 As a result, exercise of
diversity jurisdiction may require federal courts to predict novel
the grounds of fraudulent joinder because a recoverable claim was stated
against the local defendant).
22. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 764 (7th Cir.
2009) (“A defendant faces a ‘heavy burden’ to demonstrate that the joinder is
fraudulent, and some courts . . . have suggested that the burden is even more
favorable to the plaintiff than the standard that applies to a [Rule 12(b)(6)
motion].”); Hartley, 187 F.3d at 424 (“The party alleging fraudulent joinder
bears a heavy burden—it must show that the plaintiff cannot establish a claim
even after resolving all issues of law and fact in the plaintiff’s favor.”) (citation
omitted); Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992) (“[T]he
inquiry into the validity of a complaint triggered by [a Rule 12(b)(6) motion] is
more searching than that permissible when a party makes a claim of fraudulent
joinder. Therefore, it is possible that a party is not fraudulently joined, but that
the claim against that party ultimately is dismissed for failure to state a claim
upon which relief may be granted.”).
23. See E. Farish Percy, The Tedford Equitable Exception Permitting
Removal of Diversity Cases After One Year: A Welcome Development or the
Opening of Pandora’s Box?, 63 BAYLOR L. REV. 146, 154 (2011).
24. See id.
25. See generally Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586
(1999) (“Most essentially, federal and state courts are complementary systems
for administering justice in our Nation. Cooperation and comity, not
competition and conflict, are essential to the federal design. A State’s dignitary
interest bears consideration when a district court exercises discretion . . . .”).
26. See generally id.
27. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 73 (1938) (footnote
omitted).
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or ambiguous issues of state law, which is problematic because
federal courts often err in this process.28 The Erie doctrine
protects citizens’ substantive rights notwithstanding whether a
case is adjudicated in state court or federal court.29 The Court in
Erie explained that this disparity prevents uniformity in the
administration of the law of the State, leads to mischievous
results, and renders impossible the equal protection of the law.30
Because removal of a case to federal court on the basis of
diversity jurisdiction can occur after the state court has become
invested and expended judicial resources,31 courts strictly
construe statutes conferring diversity and removal jurisdiction.32
District courts are split on the standard governing fraudulent
joinder.33 For example, district courts in the First, Seventh,
28. See Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction
Through the Lens of Federalism, 78 VA. L. REV. 1671, 1680–81 (1992).
29. See Erie R.R. Co., 304 U.S. at 74–75.
30. Id. Justice Brandeis famously concluded that:
Except in matters governed by the Federal Constitution or by Acts of
Congress, the law to be applied in any case is the law of the State.
And whether the law of the State shall be declared by its Legislature
in a statute or by its highest court in a decision is not a matter of
federal concern. There is no federal general common law. Congress
has no power to declare substantive rules of common law applicable in
a State . . . . And no clause in the Constitution purports to confer such
a power upon the federal courts.
Id. at 78.
When federal courts predict state law, they make the policy
considerations, which would otherwise be reserved to the states by the
Constitution. See U.S. CONST. art. III, § 2, cl. 1 (outlining the limited instances
where federal jurisdiction is proper and otherwise reserving the power to state
courts to redress claims of their citizens or claims arising under the laws of
their state); Sloviter, supra note 28, at 1687 (“When federal judges make state
law . . . judges who are not sele[c]ted under the state’s system and who are not
answerable to its constituency are undertaking an inherent state court
function.”). Some have argued that these federalism concerns are so great that
diversity jurisdiction should be abolished entirely. See, e.g., id. at 1673–74.
31. See Scott Dodson, In Search of Removal Jurisdiction, 102 NW. U. L.
REV. 55, 70 (2008).
32. See Healy v. Ratta, 292 U.S. 263, 270 (1934) (“Due regard for the
rightful independence of state governments, which should actuate federal
courts, requires that they scrupulously confine their own jurisdiction to the
precise limits which the statute has defined.”).
33. Compare, Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.
1999) (requiring the removing defendant to prove there is no possibility the
plaintiff will recover from the non-diverse defendant), with Filla v. Norfolk S.
736
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Ninth, Tenth, and Eleventh Circuits use Rule 11 to determine
whether the plaintiff in good faith alleges a claim against the
resident defendant.34 However, district courts in the Third,
Fourth, Fifth, Sixth, and Eighth Circuits adopt a more
mechanical approach: First, these courts look at the face of the
complaint to evaluate whether the plaintiff alleges a cognizable
claim against the local defendant.35 Then, these courts look
Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003) (applying a “reasonable basis for the
claim” test, requiring the removing defendant to prove there was no reasonable
basis for the claim against the non-diverse defendant at the time it was filed).
There are four predominant standards, which control the fraudulent joinder
analyses across the country. See E. Farish Percy, Making A Federal Case of It:
Removing Civil Cases to Federal Court Based on Fraudulent Joinder, 91 IOWA L.
REV. 189, 216–17 (2005) (noting the four different standards); see infra Part
III.B.
34. See, e.g., Nelson v. Whirlpool Corp., 668 F. Supp. 2d 1368, 1377 (S.D.
Ala. 2009) (applying Rule 11); Worldwide Battery Co. v. Johnson Controls, Inc.,
No. 1:06-cv-00602-DFH-TAB, 2006 WL 3201915, at *3 (S.D. Ind. July 7, 2006)
(comparing the fraudulent joinder inquiry with a Rule 11 inquiry); Peters v.
Metro. Life Ins. Co., 164 F. Supp. 2d 830, 836 (S.D. Miss. 2001) (same); Davis v.
Prentiss Properties Ltd., 66 F. Supp. 2d 1112, 1114 (C.D. Cal. 1999) (same);
Montanez v. Solstar Corp., 46 F. Supp. 2d 101, 106 n.4 (D.P.R. 1999) (applying
Rule 11 to hold that the plaintiff did not in good faith join the resident
defendant, thereby denying the plaintiff’s motion to remand); Muller v. TSC
Indus., Inc., 92-4171-C, 1992 WL 331286, at *4 (D. Kan. Oct. 2, 1992) (using
Rule 11 to impose costs on Defendant’s counsel for merely alleging fraudulent
joinder without showing that the plaintiff lacked the intent to pursue and
recover on his viable claim against the non-diverse defendant).
35. See, e.g., Jones v. Abbott Laboratories, Civil Action No. 3:11CV–00431–
JHM, 2012 WL 32581, at *2 (W.D. Ky. Jan. 6, 2012) (same); Block v. Toyota
Motor Corp., CIV. 10-2802 ADM/AJB, 2010 WL 5422555, at *2 (D. Minn. Dec.
23, 2010) (looking first at the pleadings to determine whether the resident
defendant was properly joined), reconsideration denied, CIV. 10-2802
ADM/AJB, 2011 WL 795756 (D. Minn. Feb. 28, 2011) and aff’d, 665 F.3d 944
(8th Cir. 2011); Gibboni v. Hyatt Corp., Civil Action No. 10–2629, 2011 WL
1045047, at *3 (E.D. Pa. Mar. 22, 2011) (focusing first on the complaint to
determine whether the resident defendant was properly joined); Garcia, Civil
Action No. B–11–61, 2011 WL 2517141, at *1 (S.D. Tex. June 23, 2011) (same);
Auto Ins. Agency, Inc. v. Interstate Agency, Inc., 525 F. Supp. 1104, 1106
(D.S.C. 1981) (looking first at the complaint to determine whether plaintiff
properly joined the resident defendant by alleging facts specific to give rise to a
cognizable claim under South Carolina law).
[A]lthough the fraudulent joinder and Rule 12(b)(6) standards appear
similar, the scope of the inquiry is different. For Rule 12(b)(6) motions,
a district court may only consider the allegations in the complaint and
any attachments. For fraudulent joinder, the district court may ...
“pierce the pleadings” and consider summary judgment-type evidence
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beyond the plaintiff’s complaint by “piercing the pleadings,”
considering summary judgment-type evidence to determine
whether the plaintiff maintains a claim against the resident
defendant.36 Under either standard, the core of a fraudulent
joinder claim evaluates the claim alleged in the plaintiff’s
complaint against the local defendant.37
Courts also evaluate the merits of a plaintiff’s claim when a
defendant files a Rule 12(b)(6) motion.38 Until 2007, courts
evaluating a Rule 12(b)(6) motion looked at the plain statement
included in the complaint to determine whether “any set of facts .
. . would entitle [the claimant] to relief.”39 But in 2007, the
Supreme Court departed from the notice pleading standard
articulated in Conley, instead requiring plaintiffs to allege
specific facts giving rise to their claim in order to survive a
motion to dismiss.40 In 2009, the Supreme Court fortified this
reinterpretation of Rule 8 by confirming that well-pled facts
alone, taken as true, must state a “plausible claim for relief” in
order to survive a Rule 12(b)(6) motion.41
Until May 2007, South Carolina district courts had issued
in the record, but must also take into account all unchallenged factual
allegations, including those alleged in the complaint, in the light most
favorable to the plaintiff. Any contested issues of fact and any
ambiguities of state law must be resolved in [the plaintiff’s] favor. The
burden of persuasion on those who claim fraudulent joinder is a heavy
one.
Jones, 2012 WL 32581, at *2 (quoting Travis v. Irby, 326 F.3d 644, 648–49 (5th
Cir. 2003).
36. See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004).
37. See, e.g., id. at 573–74 (evaluating the claim alleged on the face of the
complaint and in the evidence included beyond the complaint.
38. See, e.g., Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S. Ct. 1937, 1950
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. ___, ___, 127 S. Ct. 1955, 1969
(2007).
39. See Conley v. Gibson, 355 U.S. 41, 45–46 (1957). Rule 8 states that in
order for a pleading to state a claim for relief, it must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2).
40. See Twombly, 550 U.S. at ___, 127 S. Ct. at 1969.
41. See Iqbal, 556 U.S. at ___, 129 S. Ct. at 1950. Twombly and Iqbal are
recognized as two of “the most significant Supreme Court decision[s] in a decade
for day-to-day litigation in the federal courts.” See Michael R. Huston, Pleading
with Congress to Resist the Urge to Overrule Twombly and Iqbal, 109 MICH. L.
REV. 415, 416 (2010) (footnote omitted) (internal quotation marks omitted).
738
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Fraudulent Joinder Litigation
only thirty-seven opinions resolving the merits of fraudulent
joinder claims.42 However, in the four years since the Supreme
Court issued its opinion in Twombly, thirty-six opinions on
fraudulent joinder have been issued by South Carolina district
courts—accounting for almost fifty percent of opinions issued on
the merits of fraudulent joinder claims overall.43 In other words,
the total number of fraudulent joinder opinions in South Carolina
district courts doubled since the Supreme Court first
reinterpreted Rule 8.44 The significant increase in fraudulent
joinder litigation is a function of two things. First, defendants
seeking removal to a federal court view Twombly and Iqbal as a
proxy for the fraudulent joinder analysis.45 Because Twombly
and Iqbal raised the standard for plaintiffs to state a claim and
42. See Solis Juan v. Hitachi Koki USA, Ltd., Civil Action No. 9:06-3601CWH, 2007 WL 1035005, at *1–2 (D.S.C. Mar. 29, 2007), for the state’s final
opinion on the merits of a fraudulent joinder claim before the United States
Supreme Court reinterpreted Rule 8 in Twombly.
43. See, e.g., Mendenall v. Walterboro Veneer, Inc., Civil No. 2:11-cv01291-DCN, 2011 WL 6012415, at *1–2 (D.S.C. Dec. 1, 2011) (the most recent
available opinion considering the merits of a fraudulent joinder claim after
Twombly and Iqbal); Solomon v. Sims, Civil Action No. 4:07-cv-1324-RBH, 2007
WL 2080516, at *1–2 (D.S.C. July 16, 2007) (recognizing the first available
opinion considering the merits of a fraudulent joinder claim after Twombly and
Iqbal). Comparatively, since the Supreme Court recognized fraudulent joinder
as an exception to the complete diversity requirement (see Wecker v. Nat’l
Enameling & Stamping Co., 204 U.S. 176, 185–86 (1907)), 4,612 fraudulent
joinder opinions, published or unpublished, have been issued by all federal
district courts. See Prescott v. Richards, 58 F. Supp. 10 (D. Mass. 1944) (the
first opinion available on the merits of a fraudulent joinder claim in a United
States federal district court).
In comparison, federal district courts have issued almost forty percent
of the 1,829 total fraudulent joinder opinions after May 21, 2007—the date
when the Supreme Court reinterpreted Rule 8, and thus elevated the pleading
standards to state a claim in federal court. See, e.g., Murphy v. Aurora Loan
Servs., LLC, Civil No. 11–2750-ADM/JJK, 2012 WL 104543 (D. Minn. Jan. 12,
2012) (the most recent opinion on the merits of a fraudulent joinder claim postTwombly and Iqbal); Jordan v. Am. Suzuki Motor Corp., Civil Action No.
2:07CV66KS-MTP, 2007 WL 1521521 (S.D. Miss. May 22, 2007) (the first
fraudulent joinder opinion on the merits post-Twombly and Iqbal). Comparing
South Carolina fraudulent joinder opinions post-Twombly and Iqbal with those
across the United States highlights the impact federal pleadings standards
have on fraudulent joinder litigation.
44. See supra note 43.
45. See, e.g., Askew v. DC Med., LLC, No. 1:11-cv-1245-WSD, 2011 WL
1811433, at *5 n.5 (N.D. Ga. May 12, 2011).
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thus survive a Rule 12(b)(6) motion,46 defendants removing to
federal court argue that it is comparably tougher for plaintiffs to
join a local defendant because they must include facts giving rise
to a claim under the state’s law.47 Second, the standard for
analyzing a fraudulent joinder claim is not clear. As such, some
federal courts are incorporating Twombly and Iqbal into the
fraudulent joinder analysis, which arms foreign defendants with
better precedent to remove actions alleging the plaintiff
fraudulently joined the local defendant.48
This Note first analyzes, in Part II, the history of fraudulent
joinder and its application today. Part III then discusses the
“Twiqbal” effect on fraudulent joinder.49 In discussing the impact
of Twombly and Iqbal on fraudulent joinder litigation, Part III
acknowledges that while the Rule 12(b)(6) motion and fraudulent
joinder analyses are separated by semantic differences, in
practice the doctrines converge. Part IV explains how piercing
the pleadings, the second step of the fraudulent joinder analysis,
allays the federalism concerns raised by using the Rule 12(b)(6)
standard to determine whether the plaintiff maintains a claim
against the resident defendant for jurisdictional purposes. Part
IV also proposes adopting a clearer, bifurcated analysis, by first
applying the Rule 12(b)(6) standard to the first step of the
fraudulent joinder analysis, then applying the summary
judgment-type procedure at the second step of the fraudulent
joinder analysis. Finally, Part V explains how adopting a clearer
46. But see Janssen, supra note 13, at 541 (arguing that the Iqbal pleading
evolution has not had a statistically significant increase in Rule 12(b)(6)
dismissals when compared to the theoretically more forgiving pleading
standards from Conley v. Gibson, 355 U.S. 41, 47 (1957)).
47. See, e.g., Edwea, Inc. v. Allstate Ins. Co., Civil Action No. H-10-2970,
2010 WL 5099607, at *2 (S.D. Tex. Dec. 8, 2010).
48. Tofighbakhsh v. Wells Fargo & Co., No. 10-830-SC, 2010 WL 2486412,
at *3 (N.D. Cal. June 16, 2010) (exemplifying the effect federal pleading
standards have on fraudulent joinder litigation); see also supra note 43
(showcasing the effect of the federal pleading standards on fraudulent joinder
litigation in South Carolina).
49. “Twiqbal” is a term borrowed from scholars describing the pleading
evolution brought about by the Supreme Court’s decisions in Twombly and
Iqbal. See, e.g., Scott Dodson, New Pleading, New Discovery, 109 MICH. L. REV.
53, 54–56 (2010). Anecdotal credit should also be extended to Professor William
M. Janssen, Associate Professor of Law at the Charleston School of Law, who
uses the term liberally. See generally Janssen, supra note 13.
740
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Fraudulent Joinder Litigation
standard will benefit federal courts.
II. FRAUDULENT JOINDER: HISTORY AND APPLICATION
Fraudulent joinder is a common law exception to the
complete diversity requirement first recognized by the Supreme
Court in the late nineteenth century.50 Fraudulent joinder
claims typically arise when a foreign defendant and a local
defendant are both parties to an action in state court.51 The
foreign defendant removes the case to federal court, challenging
the joinder alleging that the plaintiff joined the resident
defendant only to defeat diversity jurisdiction and bring the
claim in state court.52 At this point, the plaintiff files a motion to
remand opposing the foreign defendant’s fraudulent joinder
claim.53 If the defendant proves that the plaintiff joined the local
defendant only to defeat diversity jurisdiction, federal courts will
ignore their presence in the action and retain jurisdiction over
the matter.54 Since the late nineteenth century, courts have
struggled applying a uniform standard to analyze fraudulent
joinder claims.55
50. See E. Farish Percy, Defining the Contours of the Emerging Fraudulent
Misjoinder Doctrine, 29 HARV. J.L. & PUB. POL’Y 569, 576–77 (2006) (explaining
the origin of fraudulent joinder as an exception to the complete diversity
requirement first recognized by the Supreme Court in the early 1900s as a
means by which the Court ignores the joinder of the local defendant is there is
no reasonable basis for the claim alleged).
51. See, e.g., Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568 (5th Cir. 2004)
(illustrating the prototypical fraudulent joinder case where a driver of a vehicle
was struck by a train and brought a negligence action against the foreign
defendant railroad and the local defendant Department of Transportation).
52. See, e.g., id.
53. See, e.g., id.
54. See, e.g., id.
55. Compare Wecker v. National Enameling & Stamping Co., 204 U.S. 176
(1907) (acknowledging that a plaintiff’s good faith basis for a claim against a
local defendant cannot alone defeat a defendant’s fraudulent joinder claim),
with Chesapeake & Ohio Railway Co. v. Cockrell, 232 U.S. 146 (1914)
(explaining that a motion to remand should be granted if the plaintiff has a
reasonable basis for the claim alleged against the local defendant).
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A. History
In Alabama Great Southern Railway Co. v. Thompson (Great
Southern Railway), the Supreme Court first addressed the
matter of fraudulent joinder.56 This case highlights two central
issues facing courts evaluating fraudulent joinder claims: first,
the level of deference the Court grants to the plaintiff’s
complaint, and second, whether the Court may look beyond the
plaintiff’s complaint to determine whether federal jurisdiction is
proper.57
In Great Southern Railway, the Court denied federal
jurisdiction in the face of a foreign-defendant rail company’s
contention that the plaintiff alleged a separable cause of action
against the local defendants58—the conductor and the engineer of
one of the defendant’s trains.59 In denying federal jurisdiction,
56. 200 U.S. 206 (1906).
57. See Matthew J. Richardson, Clarifying and Limiting Fraudulent
Joinder, 58 FLA. L. REV. 119, 127 (2006) (documenting the derivation of
fraudulent joinder and illustrating how fraudulent joinder evolved in the early
1900s and confronted a different jurisdictional climate). For example, the early
Supreme Court cases, such as Great Southern Railway, predated Erie Railroad
Co. v. Tompkins, which held that federal courts must apply state law in
diversity cases. 304 U.S. 64 (1938). Pre-Erie, federal courts might differ greatly
from the state courts in ascertaining and applying substantive law—a
significant issue for the purposes of fraudulent joinder—because courts must
determine whether the plaintiff has a possibility of recovery from the local
defendant under a state’s law. See Richardson, supra, at 126 n.38.
These early Supreme Court cases also predate the 1938 adoption of the
Federal Rules of Civil Procedure, which is significant because prior to the
Federal Rules courts tested the pleadings more severely by requiring plaintiffs
to plead the correct cause of action in the correct form—a process known as code
pleading. See id. at 126 n.39 (recognizing this distinction as more significant
pre-Twombly and Iqbal when the Federal Rules required only notice pleading).
58. Since the codification of the Federal Rules of Civil Procedure in 1938,
courts determine the propriety of the parties joined in lawsuit pursuant to
Rules 20 and 21. See FED. R. CIV. P. 20 (stating defendants may be joined if
“any right to relief is asserted against them jointly, severally, or . . . with
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and any question of law or fact common to all
defendants will arise in the action”); FED. R. CIV. P. 21 (granting courts broad
discretion to either on motion or on their own add a party, drop a party, or sever
any claim against a party). Thus, the Court’s analysis in Great Southern
Railway as to the separable causes of action alleged in the complaint is
inapposite to the nature of a fraudulent joinder inquiry today.
59. Ala. Great S. Ry., 200 U.S. at 213, 220.
742
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Fraudulent Joinder Litigation
the Court rejected the rail company’s argument that removal was
proper because it was not clear whether the rail company could
be held jointly liable for the independent actions of its servant.60
In effect, the Court in Great Southern Railway confirmed the
incentive for plaintiffs to elect strategies in bringing their suit—
strategies that often defeat diversity jurisdiction, rendering a
defendant’s removal improper.
Analyzing the fraudulent joinder question, the Court noted
the absence of fraud within the allegations included in the
plaintiff’s complaint.61 In looking past the subjective intent of
the plaintiff in joining the local defendant, the Court signaled
that a fraudulent joinder inquiry was an objective evaluation of
the plaintiff’s claim against the local defendant.62 The Court
recognized that, in some instances, the fraudulent joinder inquiry
might go beyond the four corners of the complaint if the plaintiff
fails to establish a joint cause of action.63 Still, the Court
confined its inquiry to the face of the complaint, even though it
was not clear whether an inseparable cause of action could be
alleged against the foreign-defendant rail company and its two
local employees responsible for the plaintiff’s injuries.64 By
declining to analyze the plaintiff’s allegations in more depth, the
Court highlighted a preeminent concern in fraudulent joinder
litigation—the extent to which courts must analyze the
substance of a plaintiff’s complaint in a purely jurisdictional
inquiry.65
One year later, the Court departed from a restrained
fraudulent joinder analysis and instead looked beyond the four
corners of the plaintiff’s complaint to uphold federal diversity
jurisdiction.66 In Wecker, the plaintiff joined his local supervisor
in a personal injury action, alleging that the local supervisor
negligently failed to provide and supervise a safe working
60.
61.
62.
63.
64.
65.
66.
(1907).
See id. at 219–20.
Id. at 218.
Id.
See id. at 217.
Id.
See supra notes 27–32 and accompanying discussion on Erie.
See Wecker v. National Enameling & Stamping Co., 204 U.S. 176, 181
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environment.67 The affidavits of both the foreign-defendant
corporation and the local defendant agreed that the local
defendant was only employed as a draftsman within the company
and had no duty to supervise the activities which gave rise to the
plaintiff’s injuries.68 On these grounds, the Court ignored the
joinder of the local defendant, even though the plaintiff filed a
counter-affidavit alleging that he heard someone order the local
defendant to plan and construct the furnace, which caused the
plaintiff’s injuries.69 Today, Wecker remains significant as an
early beacon on the two-step procedure for the fraudulent joinder
inquiry—first to look at the complaint to determine if the
plaintiff has alleged a claim against the local defendant, and
second to go beyond the complaint when recovery is not likely
under the facts alleged by the plaintiff.70 Wecker is also
significant because the Court implicitly acknowledged, by
considering affidavit testimony, that sometimes a plaintiff’s good
faith claim against a local defendant would not, alone, defeat
diversity jurisdiction.
Chesapeake & Ohio Railway Co. v. Cockrell, taken together
with Wecker, created a jurisprudential environment ripe for
fraudulent litigation because Cockrell added a “reasonableness”
component to the two-step fraudulent joinder inquiry articulated
67. Id. at 178.
68. Id. at 183–84.
69. Id. at 187. Some legal scholars contend the takeaway from Wecker is
much simpler and its later extension in Chesapeake & Ohio Railway Co. v.
Cockrell, 232 U.S. 146 (1914) was improper. For the purposes of fraudulent
joinder claims before the codification of the Federal Rules of Civil Procedure the
question to some remained, what controversies has Congress made removable
in the act under consideration? See Richardson, supra note 57, at 128 n.53.
70. See, e.g., Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.
2004) (allowing courts to “pierce the pleadings” to determine the propriety of
the parties when a plaintiff files a motion to remand in opposition of
defendant’s fraudulent joinder claim).
As a matter of context Wecker was decided prior to the adoption of the
Federal Rules of Civil Procedure. There is some debate as to whether the
fraudulent joinder question in Wecker would be decided the same because now,
unlike the days of notice pleading, the pleadings are used to evaluate the facial
plausibility of a plaintiff’s cause of action. See Christopher M. Fairman, The
Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 988 (2003) (During the notice
pleading days, discovery, and not the pleadings, was used to determine whether
the plaintiff could hold the defendant liable for his claim).
744
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Fraudulent Joinder Litigation
in Wecker.71 There, the Court denied the foreign-defendant rail
company’s fraudulent joinder claim because the plaintiff’s
allegations against the local defendant were based on a
“reasonable basis.”72 The Court continued that a defendant’s
right to remove an action to federal court73 could not be defeated
by the fraudulent joinder of a resident defendant having no “real
connection with the controversy.”74 Unlike Wecker, the removing
defendant in Cockrell conceded that the plaintiff stated a cause of
action against the local defendants.75 The Court noted that the
plaintiff’s negligence claims against the removing rail-company,
71. 232 U.S. 146, 153 (1914).
72. Id. This is the first instance of the “reasonable basis” articulation of
the fraudulent joinder standard, a standard applied often today to determine
the merits of fraudulent joinder claims. See, e.g., Smallwood, 385 F.3d at 573.
Since Cockrell, many federal courts often state at the beginning of their
analysis of a fraudulent joinder claim, that “fraudulent joinder” is a term of art
because courts have long departed from analyzing a plaintiff’s intentions in
determine whether federal jurisdiction lies. See, e.g., McCabe v. Gen. Foods
Corp., 811 F.2d 1336, 1339 (9th Cir. 1987) (“Fraudulent joinder is a term of art.
If the plaintiff fails to state a cause of action against a resident defendant, and
the failure is obvious according to the settled rules of the state, the joinder of
the resident defendant is fraudulent”).
73. In Martin v. Hunter’s Lessee, 14 U.S. 304, 348–49 (1816), the Court
emphasized the Constitution protects the right of defendants to appear in a
court where jurisdiction is proper and that by allowing a plaintiff to always
elect state court defendants may be deprived of all the security which the
constitution intended in aid of his rights.
74. Cockrell, 232 U.S. at 152. To highlight the continued vitality of this
case, the Cockrell court’s language “no real connection with the controversy”
plays a central role in the Second Circuit’s fraudulent joinder standard. See,
e.g., Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 207 (2d Cir. 2001) (“[A]
plaintiff may not defeat a federal court’s diversity jurisdiction and a defendant’s
right of removal by merely joining as defendants parties with no real connection
with the controversy.” (quoting Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459,
460–61 (2d Cir. 1998)); cf. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d
Cir. 1992) (quoting Boyer v. Snap-On Tools Corp., 913 F.2d 108, 113 (3d Cir.
1990)) (citing Cockrell, 232 U.S. at 153) (rejecting a fraudulent joinder claim if a
“colorable claim[] . . . [is alleged] against . . . [a] non-diverse defendant[]” so long
as the alleged claim has merit) (internal quotation marks omitted); Smallwood,
385 F.3d at 574 (citing Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146,
153 (1914)) (drawing from Cockrell and holding that where the non-diverse
defendant shares a common defense with the diverse defendant, then the nondiverse defendant is properly joined, and the court must remand the case to
state court for lack of subject-matter jurisdiction).
75. Cockrell, 232 U.S. at 152.
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the fireman, and the engineer were all inextricably linked.76 The
Court again rejected any further inquiry that would
unnecessarily inquire into the merits of the plaintiff’s allegations
even after acknowledging the plaintiff failed to charge any
negligent act or omission against the railway company.77
Cockrell remains significant because the four divergent
approaches applied by lower courts evaluating fraudulent joinder
claims are derived from the reasonableness coined by the Court.78
Seven years later, the Court revisited fraudulent joinder and
emphasized that even when a state’s law is unclear on the
potential liability of the local defendant, the plaintiff must
include some facts to implicate joint liability amongst the foreign
and local defendants.79 The Court also noted the heavy burden
imposed on foreign defendants removing claims to federal court
on the basis of fraudulent joinder.80 To prove fraudulent joinder,
the defendant must state facts leading to a conclusion that the
plaintiff does not possess a reasonable basis for including the
local party in the lawsuit.81 Because the plaintiff did not dispute
the defendant’s contention that joining the resident defendant
was “without any purpose to [litigate] the cause in good faith,”
the Court retained jurisdiction and denied the plaintiff’s motion
to remand.82
76. Id. at 153.
77. Id.
78. See, e.g., infra notes 100–123 and accompanying text describing the
four standards applied by lower courts.
79. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 98 (1921). At the
time the Court decided Wilson, the Federal Rules of Civil Procedure had not yet
been adopted, which is significant because the plaintiff seemingly complied with
the code pleading requirements to include a foreign-defendant and a local
employee in a joint cause of action. See id. But, in affirming the denial of the
motion to remand, the Court gradually expands the depth of inquiry
appropriate in fraudulent joinder litigation. See id. The net effect of the Wilson
decision is this—even when a plaintiff complied with the pre-1938 pleading
requirements to allege a joint cause of action against a local and foreign
defendant, that alone was not enough to oppose a fraudulent joinder claim
when the defendant alleges specific facts proving that the plaintiff did not
intend to litigate the cause in good faith.
80. Id. at 97.
81. Id.
82. Id. at 98.
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Finally, in Pullman Co. v. Jenkins,83 the first case decided
after the adoption of the Federal Rules of Civil Procedure, the
Court held that post-removal amendments to the plaintiff’s
complaint would not affect the fraudulent joiner analysis.84 In so
holding, the Court prevented plaintiffs from unfairly
manipulating the removal-and-remand process by continually
amending their complaints after removal to defeat diversity
jurisdiction.85 The Court upheld the grant of plaintiff’s motion to
remand even though the plaintiff did not establish the
residencies of the local defendants in the original complaint.86 In
Pullman, the foreign defendant relied on the fact that the
residence of the local defendant was not fully established.87
Ignoring the plaintiff’s amended complaint, the Court held the
defendant failed to prove that the residency of the local
defendant was in fact diverse, and thus the Court rejected the
defendant’s fraudulent joinder claim.88
These Supreme Court cases illustrate the evolution of the
fraudulent joinder inquiry. On the one hand, the Court is
mindful to protect a defendant’s right to remove.89 On the other
hand, the Court hesitates to intrude into the merits of a case
when the question is purely a jurisdictional inquiry.90 This
tension is exacerbated in two ways. First, the two-step fraudulent
joinder inquiry recognized in Wecker allows courts to go beyond
the pleadings when a defendant alleges specific facts proving the
fraudulent joinder of a local defendant.91 Second, the Court,
83.
84.
85.
86.
87.
88.
305 U.S. 534 (1939).
Id. at 537.
Id.
Id. at 536.
Id.
Id. at 537. “If plaintiffs could amend their petitions after removal, they
could create unreasonable delay in determining which court, state or federal,
should hear the case by continually joining non-diverse defendants. However,
after removal and the court’s decision the fraudulent joinder question, the
plaintiff may join separate claims and different parties.” Richardson, supra
note 57, at 131 n.72. See, e.g., Wecker v. Nat’l Enameling & Stamping Co., 204
U.S. 176 (1907). Today, courts have discretion under 1447(e) to permit such
joinder. See 28 U.S.C. § 1447(e) (2006).
89. See Martin v. Hunter’s Lessee, 14 U.S. 304, 348–49 (1816).
90. See Ala. Great S. Ry. Co. v. Thompson, 200 U.S. 206 (1906).
91. See Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, 183–84
(1907).
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beginning with Wecker, departed from a subjective inquiry into
the intent of the plaintiff joining the local defendant, instead
substituting a reasonableness component, allowing courts to use
their discretion to determine the plaintiff’s ability to recover
against the local defendant.92 The reasonableness of joinder is
under increased scrutiny after the Supreme Court reinterpreted
the federal pleading standards.93 These decisions remain
significant because they illustrate that at the earliest stages of
fraudulent joinder litigation, the Court authorized some
intrusion into the merits of the claim.94
B. Applying Fraudulent Joinder Today
Despite the early intrusion into the merits, the Supreme
Court precedent is not clear, and thus lower courts do not apply a
uniform analytical framework to fraudulent joinder claims
because courts vacillate on the appropriate level of depth to their
inquiry.95 Courts use four different approaches to determine
whether a plaintiff fraudulently joined a local defendant.96 All of
these approaches are ambiguous because the different inquiries
offer pretextual explanations to justify inquiring into the merits
of a plaintiff’s claim against the local defendant. Mostly, these
courts couch their fraudulent joinder inquiry under the pretext of
reasonableness.97 The pretext is unnecessary and burdensome
92. See Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 153 (1914).
93. See supra text accompanying note 43 for an example of how the federal
pleading standards have impacted the number of fraudulent joinder claims in
South Carolina district courts.
94. See, e.g., supra notes 66–70 for an example on an intrusion into the
merits of a claim when a defendant alleges fraudulent joinder of a resident
defendant.
95. Compare Nelson v. Whirlpool Corp., 688 F. Supp. 2d 1368, 1377 (S.D.
Ala. 2009) (using Rule 11 to limit the depth of its inquiry into the plaintiff’s
allegations against the non-diverse defendant), with Smallwood v. Ill. Cent.
R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004) (using the 12(b)(6) analysis as a
proxy and arguably expanding the depth of the inquiry of a fraudulent joinder
claim).
96. See cases cited supra note 34.
97. See, e.g., Gray v. Beverly Enterprises-Mississippi, Inc., 903 F.3d 400,
405 (5th Cir. 2004); Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir.
2003); Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999). All of
these courts apply some variation of a “reasonableness” test to determine
whether the plaintiff states a claim against the local defendant for jurisdictional
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because the standard offered by these courts “hides the ball.” As
a result, this ambiguous standard perpetuates litigation
resulting in judicial inefficiency.98 Inefficiency is the byproduct
of this ambiguity because foreign defendants correctly view the
Rule 12(b)(6) standard as the initial means by which courts
determine whether a local defendant is properly joined in the
These divergent
context of fraudulent joinder litigation.99
approaches applied by courts below can be reconciled by
incorporating the federal pleading standards into the fraudulent
joinder analysis.
The first approach, adopted by the Eight Circuit, applies a
“reasonable basis for the claim” test, which requires the
removing defendant to prove there was no reasonable basis for
the claim against the local defendant.100 Norfolk Southern, the
foreign defendant, appealed the grant of a motion to remand and
argued that Missouri law did not impose a duty on rural
landowners to modify their property.101 The court upheld the
district court’s grant of the plaintiff’s motion to remand even
though it was not clear whether a claim could be sustained
against the local defendant under Missouri law.102 The court
emphasized that fraudulent joinder is in part an Erie problem,103
and federal courts are reluctant to take cases away from state
courts, especially when a resident plaintiff seeks redress in that
forum against a resident defendant.104 According to the Eighth
Circuit, motions to remand should be granted if there is a
reasonable basis for predicting that state law might impose
purposes.
98. See supra note 43 explaining the post-Twombly and Iqbal effect on
fraudulent joinder litigation.
99. See, e.g., Askew v. D.C. Med., LLC, No. 1:11-cv-1245-WSD, 2011 WL
1811433, at *8 n.5. (N.D. Ga. May 12, 2011) (acknowledging the parallels
between the Rule 12(b)(6) inquiry and the first step of the fraudulent joinder
inquiry).
100. Filla, 336 F.3d at 810.
101. Id.
102. Id. at 811.
103. Id. at 810–11 (citing Badon v. RJR Nabisco, Inc., 236 F.3d 282, 285–86
(5th Cir. 2000)) (acknowledging that in most diversity cases “a federal court is
required to ascertain and apply state law no matter how onerous the task”).
104. See supra notes 27–32 and accompanying text.
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liability on the local defendant based upon the facts pled.105 In
making this prediction, the court resolved all facts and
ambiguities within the controlling substantive law in the
plaintiff’s favor, much like courts do when faced with a Rule
12(b)(6) motion.106 Where the sufficiency of the complaint
against the non-diverse defendant is questionable, “the better
practice is for the federal court not to decide the doubtful
question in connection with a motion to remand but simply to
remand the case and leave the question for the state courts to
decide.”107 By remanding the case, the Eighth Circuit respected
the federalism concerns first raised in Erie.108
The second approach applies the “no possibility of recovery”
test, requiring the removing defendant to prove there is no
possibility the plaintiff will recover from the non-diverse
defendant.109 In Hartley v. CSX Transportation, Inc., the out-ofstate defendant argued that the diversity-defeating government
defendants were fraudulently joined because they could not be
liable as a matter of law under South Carolina’s public duty
rule.110 The Fourth Circuit directed the court below grant the
plaintiff’s motion to remand because the foreign defendant failed
to prove that there was “no possibility that the plaintiff would be
able to establish a cause of action against the in-state defendant
in state court.”111 The court noted that the fraudulent joinder
standard is more favorable to the plaintiff than the standard for
ruling on a Rule 12(b)(6) motion.112 In Hartley, the court refused
to resolve ambiguous interpretations of South Carolina’s publicduty rule in favor of the out-of-state defendant, emphasizing the
different resolutions of the public-duty rule indicates a possibility
105. Filla, 336 F.3d at 811.
106. Id.
107. Id. (quoting Iowa Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400,
406 n.6 (8th Cir. 1977)) (internal quotation marks omitted).
108. See id. at 811.
109. Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quoting
Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)) (internal
quotation marks omitted).
110. Id.
111. Id. (quoting Marshall, 6 F.3d at 232).
112. Id.; see also Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir.
1992) (inquiring into validity of complaint is more searching under Rule 12(b)(6)
than when party claims fraudulent joinder).
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Fraudulent Joinder Litigation
of recovery.113 A jurisdictional inquiry is not the appropriate
stage of litigation to resolve questions of law and fact.114 While
the plaintiff’s claims may not ultimately succeed, their success is
not required to defeat removal.115
The Fifth Circuit adopts a third approach and requires the
removing defendant to prove there is “no reasonable possibility
the plaintiff will recover from the non-diverse defendant.”116 In
Gray, the foreign defendant, a California nursing home
corporation, argued that the plaintiff did not state a claim under
Mississippi law to hold the administrators and licensees of the
facility liable for the plaintiff’s injuries.117 Each party disputed
the degree to which the local defendants participated in the
caretaking of the plaintiffs because the degree to which the local
defendants participated impacted whether liability could attach
under local law.118 The Fifth Circuit held that because the
relevant state law was ambiguous, there was “arguably a
reasonable basis for predicting that the state law might impose
liability on the facts involved;” and thus, removal was
improper.119
The fourth approach, adopted by the Ninth Circuit, applies
the “failure to state a claim” test, equating the first step of the
fraudulent joinder analysis with the Rule 12(b)(6) question—has
the plaintiff stated a claim against the local defendant according
to the settled rules of the state?120 The Ninth Circuit denied the
foreign defendant’s fraudulent joinder claim, remanding the case,
113. Hartley, 187 F.3d at 425.
114. Id.; see also Navarro Savs. Ass’n v. Lee, 446 U.S. 458, 464 n.13 (1980)
(“Jurisdiction should be as self-regulated as breathing . . . litigation over
whether the case is in the right court is essentially a waste of time and
resources.” (quoting David P. Currie, The Federal Courts and the American Law
Institute, Part I, 36 U. CHI. L. REV. 1 (1968)) (internal quotation marks
omitted)).
115. Hartley, 187 F.3d at 426.
116. Gray v. Beverly Enterprises-Mississippi, Inc., 903 F.3d 400, 405 (5th
Cir. 2004).
117. Id. at 402.
118. Id. at 410 (explaining the ambiguity of Mississippi law to hold
directors, officers, or agents liable for the acts or omissions in the course of their
employment).
119. Id. at 402 (quoting Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003))
(internal quotation marks omitted).
120. See Hunter v. Philip Morris USA, 582 F.3d 1039, 1045 (9th Cir. 2009).
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even though federal law possibly preempted the plaintiff’s
claim.121 For example, the Ninth Circuit reasoned that it was not
obvious that the plaintiff failed to state a claim against the local
defendant.122 In support of directing the grant of the plaintiff’s
motion to remand, the court quoted the plaintiff’s complaint,
finding that the plaintiff stated a claim against the local
defendant.123
Askew v. DC Medical, LLC, expounds on the test endorsed by
the Ninth Circuit by equating the Rule 12(b)(6) failure to state a
claim test with the first step of the fraudulent joinder inquiry.124
In Askew, the out-of-state defendant submitted the affidavit of
Castenfelt, the principal of the diversity-defeating local
defendant, which stated that DC Medical only distributed the
As the solo
defective devices as they were packaged.125
distributor, DC Medical made no independent representations
about the product’s safety.126 The district court’s first step of the
fraudulent joinder inquiry considered the allegations of the
complaint.127 Because the complaint did not include any fact that
gave rise to independent recovery under the controlling state’s
law, the court considered the affidavit submitted by the out-ofstate defendant, which denied the existence of a cognizable claim
against the local defendant.128 By going beyond the complaint
121. Id.
122. Id.
123. Id. Relying on only the facts stated in the complaint, the Ninth Circuit
did not allow a defense to the plaintiff’s claim to expand removal jurisdiction on
the basis of fraudulent joinder. Id.
(1) that [the plaintiff] “purchased and used cigarettes from
defendants”; (2) the cigarettes were unsafe and defective and posed a
risk that outweighed their utility; (3) [the plaintiff] used defendants’
cigarettes “without a change in condition,” since they had left
defendants’ possession; (4) [the plaintiff] developed lung cancer “as a
direct and proximate result of the use of Defendants’ unsafe and
defective cigarettes”; and (5) this caused his family losses.
Id.
124. See No. 1:11-cv-1245-WSD, 2011 WL 1811433, at *8 n.5. (N.D. Ga. May
12, 2011).
125. Id. at *6.
126. Id.
127. Id.
128. Id.
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and considering affidavit testimony to determine whether the
plaintiff fraudulently joined the resident defendant, the court
“pierced the pleadings.”129 Because the plaintiff failed to present
any evidence that the in-state defendant had knowledge of the
product’s alleged defects, the local defendant was not proper;
thus, the court denied the motion to remand.130
Notwithstanding the semantic differences among the four
tests, there is no practical difference because courts continue to
engage in a deeper inquiry by carefully scrutinizing the
allegations included in the plaintiff’s complaint, the ambiguity of
the local law implicated by the factual allegations, only to apply
their discretion to find the joinder of the local defendant either
proper or improper.131 This is exactly what courts do when
deciding Rule 12(b)(6) motions post-Twombly and Iqbal—
examine the facts on the face of the complaint and use their
discretion to determine whether a claim has been stated against
the defendant.132 The evolving fraudulent joinder standard
illustrates that courts recognize the need for objective indicia to
evaluate the joinder of a local defendant, such as a Rule 12(b)(6)
inquiry, to determine whether a claim is stated against the local
defendant.133 Courts prefer objective indicators in fraudulent
joinder litigation because an objective analysis of the claims
alleged against local defendants preserves judicial efficiency.134
129. See, e.g., Casias v. Wal-Mart Stores, Inc., 764 F. Supp. 2d 914, 918
(W.D. Mich. 2011) (citing Bennett v. MIS Corp., 607 F.3d 1076, 1087 n.11 (6th
Cir. 2010)) (“When a district court’s subject matter jurisdiction is in question, it
is empowered to review extra-complaint evidence and resolve factual
disputes.”).
130. Askew, 2011 WL 1811433 at *7.
131. See, e.g., Gray v. Beverly Enterprises-Mississippi, Inc., 903 F.3d 400,
405 (5th Cir. 2004).
132. See, e.g., Delhomme v. Caremark Rx Inc., 232 F.R.D. 573, 578 (N.D.
Tex. 2005) (using discretion to determine whether materials outside of the
pleadings state a claim against the defendant in a 12(b)(6) motion).
133. See, e.g., Gray, 390 F.3d at 405 (citing Irby, 326 F.3d at 647)
(determining whether a local defendant has been fraudulently joined asks the
court to answer the same question as a Rule 12(b)(6) motion: whether the
plaintiff has set out a valid claim under applicable state law).
134. See supra note 43 illustrating the effect of Twombly and Iqbal on
fraudulent joinder litigation. For example, almost forty percent of all fraudulent
joinder opinions in district courts have been litigated after 2007—the year the
Court issued Bell Atlantic Corp. v. Twombly.
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However, lower courts routinely ignore the closest objective
indicator—a Rule 12(b)(6) motion—a practice that correlates
with the flood of fraudulent joinder litigation post-Twombly and
Iqbal.135
From the late nineteenth century until today, federal courts
facing fraudulent joinder claims have walked a fine line between
appropriately answering a jurisdictional question and
inappropriately intruding into the merits of a case for which a
federal court lacks jurisdiction to decide.136 While the analysis of
fraudulent claims has not changed substantially since Cockrell,137
lower courts remain confused about the correct fraudulent
joinder standard to apply, deriving their confusion from
checkered Supreme Court precedent. More specifically, lower
courts are split on an issue significant for the purposes of this
Note: whether the fraudulent joinder inquiry is confined to a
narrow jurisdictional inquiry,138 or whether a Rule 12(b)(6)
inquiry can be used to determine the cognizability of the
plaintiff’s allegations against the local defendant.139 This debate
135. See supra note 43.
136. E. Farish Percy, Making A Federal Case Of It: Removing Civil Cases To
Federal Court Based on Fraudulent Joinder, 91 IOWA L. REV. 189, 193 (2005).
“The line between an appropriate jurisdictional inquiry and an inappropriate
decision affecting the merits of a case has created a thematic tension between
balancing the access to justice against the perceived need for regulating the
flow of cases through the judicial system in an orderly and efficient manner.”
Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two
Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings, 88
B.U. L. REV. 1217, 1219 (2008).
137. See, e.g., Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)
(explaining that in order to prove fraudulent joinder “the removing party has
the burden of proving either: (1) there is no possibility the plaintiff can
establish a cause of action against the resident defendant; or (2) the plaintiff
has fraudulently pled jurisdictional facts to bring the resident defendant into
state court”). This standard illustrates the typical fraudulent joinder standard
and parallels the reasonableness standard first adopted by the Supreme Court
in Cockrell. See Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146 (1914).
138. See, e.g., Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992)
(holding that the fraudulent joinder inquiry is properly analogized to an
analysis under a narrower standard under Federal Rule of Civil Procedure
12(b)(1)—regulating a motion to dismiss for lack of subject matter jurisdiction,
rather than the “more searching” standard of the Rule 12(b)(6) motion).
139. See, e.g., FED. R. CIV. P. 12(b)(6) (granting a motion to dismiss when
there was “failure to state a claim upon which relief can be granted”); see also
Travis v. Irby, 336 F.3d 644, 648 (5th Cir. 2003) (explaining that fraudulent
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has only intensified since the Supreme Court issued Twombly
and Iqbal because foreign-defendants correctly view these two
decisions, as they interpret the Rule 12(b)(6) motion, as the
standard for the first step of the fraudulent joinder inquiry.
III. TWOMBLY, IQBAL, AND THE RULE 12(B)(6) MOTION: A
PROXY FOR THE FRAUDULENT JOINDER ANALYSIS
The first step of the fraudulent joinder analysis answers the
same question as a Rule 12(b)(6) motion—has a plaintiff stated a
claim against a local defendant? However, distinct from a pure
Rule 12(b)(6) motion, a fraudulent joinder claim raises a
jurisdictional question, whereas a Rule 12(b)(6) motion evaluates
the complaint to determine if a plaintiff states a factually and
legally sufficient claim.140 Courts rejecting Twombly, Iqbal, and
the Rule 12(b)(6) standard from the first step of the fraudulent
joinder inquiry cite the need to confine the analysis to a
jurisdictional inquiry for two reasons.141 First, federalism
concerns dictate that state law claims should be adjudicated in
state court when a local defendant is a proper party to the
action.142 By confining their inquiry, courts avoid making meritbased determinations about the claims alleged against the local
defendant and allow state courts to apply their law when the
parties are not completely diverse.143 Second, confining the
inquiry on jurisdictional grounds prevents judicial inefficiency
because once a federal court retains jurisdiction, a plaintiff
cannot appeal the denial of their motion to remand until after a
final judgment.144 Prematurely retaining jurisdiction based on
joinder “cases have . . . noted the similarity of the test for fraudulent joinder
and the test for a Rule 12(b)(6) motion”).
140. See, e.g., Wells’ Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 157 F.
Supp. 2d 1018, 1036 (N.D. Iowa 2001).
141. See cases cited supra note 14 (articulating reasons to reject Twombly
and Iqbal in the first step of a fraudulent joinder analysis).
142. See, e.g., Filla, 336 F.3d at 810 (citing federalism concerns to support
the preference for remand); see also supra notes 27−32 and accompanying text.
143. See, e.g., Escuadra v. Geovera Specialty Ins. Co., 739 F. Supp. 2d 967,
974 (E.D. Tex. 2010) (dismissing the Rule 12(b)(6) standard as a proxy for the
first stage of the fraudulent joinder inquiry because the “uneasy tension with
comity implications” and explaining the significant federalism concerns raised
by removal jurisdiction).
144. See 28 U.S.C. § 1292(b) (2006); see also Caterpillar Inc. v. Lewis, 519
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an incorrect evaluation of the plaintiff’s allegations against the
resident defendant perpetuates inefficiency because once a court
renders a final judgment a plaintiff could then appeal the denial
of the motion to remand, and if their appeal is successful, the
entire case would be re-litigated in state court.145
But, for fraudulent joinder purposes, the distinction is one
without a difference because courts distinguish between
jurisdictional and merit based inquiries to allay federalism
concerns and protect the comity of our dual court system.146 The
jurisdictional versus merit-based distinction is not significant
because the second step of the fraudulent joinder inquiry protects
the federalism and comity concerns oft-cited by courts when
rejecting the Rule 12(b)(6) standard for the first step of the
fraudulent joinder inquiry. With that concern allayed, courts
must apply the Rule 12(b)(6) standard to the first step of the
fraudulent joinder inquiry because the two inquiries are
intrinsically connected.147
However, since Twombly and Iqbal, courts cite inapposite
reasons—federalism and comity—for rejecting the Rule 12(b)(6)
standard in the first step of fraudulent joinder inquiry.148 An
unintended consequence arises out of this inconsistency because
U.S. 61, 74 (1996) (“An order denying a motion to remand, ‘standing alone,’ is
‘[o]bviously . . . not final and [immediately] appealable’ as of right . . .”)
(alterations in original) (quoting Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574,
578 (1954)).
145. Through decades of Supreme Court jurisprudence, it is axiomatic that
federal courts are courts of limited jurisdiction. See generally B., Inc. v. Miller
Brewing Co., 663 F.2d 545 (5th Cir.1981). All federal district courts are well
advised not to poach upon the territory of a coordinate judicial system. Id. at
548. “When a federal court acts outside its statutory subject-matter jurisdiction,
it violates the fundamental constitutional precept of limited federal power.”
Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 216 (5th Cir. 1998) (en banc).
Under our doctrine of “federalism” federal courts should not usurp authority
over cases that are properly in state court. See Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100 (1941).
146. See, e.g., supra notes 27–32 explaining the federalism concerns of
diversity jurisdiction; Escuadra, 739 F. Supp. 2d at 974 (emphasizing
federalism and comity concerns when rejecting the Rule 12(b)(6) standard).
147. See Escuadra, 739 F. Supp. 2d at 976–82 (noting the similarities
between the Rule 12(b)(6) inquiry and the first stage of the fraudulent joinder
inquiry and acknowledging that even if the court applied the Rule 12(b)(6)
standard post-Twombly and Iqbal the outcome likely would not be different).
148. See id.
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defendants are more apt now to remove cases to federal court
raising fraudulent joinder claims.149 Exacerbating the influx of
fraudulent joinder litigation, lower courts apply inconsistent
standards littered with semantic differences to evaluate
fraudulent joinder claims.150 These inconsistent standards share
one characteristic—they inappropriately cite federalism and
comity concerns when rejecting the Rule 12(b)(6) standard for the
first step of the fraudulent joinder inquiry.151 Applying Twombly
and Iqbal provides structure and clarity to the first procedural
step of the fraudulent joinder analysis.
A. The Evolution of the Federal Pleading Standards
Prior to the Federal Rules of Civil Procedure, various
pleading rules existed under English, state, and federal law,
which included technical pleading and code pleading.152 Under
149. See supra note 43 for an illustration of the increase in fraudulent
joinder litigation post-Twombly and Iqbal.
150. See supra Part II.B.
151. See, e.g., Gray v. Beverly Enterprises-Mississippi, Inc., 903 F.3d 400,
405 (5th Cir. 2004) (applying a “no reasonable possibility of recovery” test
instead of the Rule 12(b)(6) standard because a fraudulent joinder claim raises
a jurisdictional question, not a question about the merits of the plaintiff’s
claim).
152. See, e.g., Emily Sherwin, The Jurisprudence of Pleading: Rights, Rules,
and Conley v. Gibson, 52 HOW. L.J. 73, 76 (2008). “In Medieval England, courts
generally presented those seeking legal recourse with two options: ‘the
burdensomely technical route through the courts of law or the burdensomely
factual route through the courts of equity.’” See Victor E. Schwartz &
Christopher E. Appel, Rational Pleading in the Modern World of Civil
Litigation: The Lessons and Public Policy Benefits of Twombly and Iqbal, 33
HARV. J.L. & PUB. POL’Y 1107, 1111 (2010) (citation omitted). Through technical
code pleading,
[C]ommon law courts still insisted, however, that each of the
plaintiff’s allegations be whittled down to a single issue, divided into
questions of law for the judge and questions of fact for the jury, and
ruled on at the pleading stage. The wide adoption of code pleading
finally shed some of the common law’s enduring arcane formalities,
allowing for a more level playing field. Frustrations with the rigidity
and injustice of technical pleading led to the formation of the “code
pleading” system, which was predicated on a set of legislatively
adopted rules intended to promote greater clarity and uniformity in
pleading requirements, prevent unfair surprise to parties, and reduce
costs.
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English law, plaintiffs were required to plead the correct form of
the action.153 Under the subsequent code pleading in the United
States, plaintiffs were required to plead the cause of action and
facts specific to the elements of the cause of action.154 In 1938,
Congress changed these pleading standards by enacting Rule
8(a)(2)—requiring plaintiffs to include only a short and plain
statement of the claim giving notice to the defendant and in turn
survive a Rule 12(b)(6) motion.155 The 1938 adoption of the
federal rules of civil procedure effectively abandoned the code
pleadings standards adopted from the English common law at
the country’s founding.156 Rule 12(b)(6) accompanied the 1938
adoption of the federal rules of civil procedure and provided
defendants a means to dismiss an action for failure to state a
claim under Rule 8.157
Until 2007, courts dismissed a plaintiff’s claim on a Rule
12(b)(6) motion only if it appeared beyond doubt that “no set of
facts” could support the claim based on the plaintiff’s statement
of the claim under Rule 8(a)(2).158 In Conley, the Court held that
Id. at 1114.
153. See Pleading Standards, 121 HARV. L. REV. 305, 311–12 n. 60 (2007)
(citing LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 96 (3d ed. 2005)
(“English common-law pleading was an elaborate contest of lawyerly arts, and
winning a case did not always depend on who was in the right or who had the
law on their side. The winner might be the better pleader.”).
154. See 5 CHARLES ALLEN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE §1202 (3d ed. 1994).
155. FED. R. CIV. P. 8(a)(2).
156. See Stephen N. Subrin, How Equity Conquered Common Law: The
Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV.
909, 925 (1987) (explaining in detail the history of the derivation of American
pleading requirements).
157. See Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944) (explaining
and applying the Rule 12(b)(6) motion six years after the codification of the
federal rules of civil procedure).
158. See Conley v. Gibson, 355 U.S. 41, 45–46 (1957). But see Limestone
Dev. Corp. v. Village of Lemont, 520 F.3d 797, 803–04 (7th Cir. 2008)
(“[Twombly] must not be over-read . . . A complaint must always[] . . . allege
‘enough facts to state a claim to relief that is plausible on its face,’ . . . and how
many facts are enough will depend on the type of case . . . If discovery is likely
to be more than usually costly, the complaint must include as much factual
detail and argument as may be required to show that the plaintiff has a
plausible claim.” (citations omitted)). Even before Twombly and Iqbal,
complaints were dismissed when defendants alleged facts that refuted the
plaintiffs’ claims. See, e.g., Tierney v. Vahle, 304 F.3d 734, 742 (7th Cir. 2002)
758
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“specific facts” in support of the general allegations were not
required because Rule 8 required notice of the claim alleged.159
By interpreting Rule 8 as a means to provide defendants with
notice of the claim alleged against them, Conley emphasized that
through discovery parties could narrow the contested issues in
their case.160
Within this context, in 2007, the Court interpreted Rule
8(a)(2) to require a pleading to show an entitlement to relief.161 In
Twombly the Supreme Court stated that the alleged facts must
(examining the plaintiff’s factual allegations pre-Twombly and Iqbal and
finding that the facts pled did not show an agreement between the defendants
to adequately plead a conspiracy claim); Thomas v. Farley, 31 F.3d 557, 558–59
(7th Cir. 1994) (explaining that even pre-Twombly and Iqbal “if a plaintiff does
plead particulars, and they show that he has no claim, then he is out of luck—
he has pleaded himself out of court”). In both of these cases, Judge Posner used
his discretion to conclude that the facts did not give rise to the claims alleged.
Judge Posner’s opinions pre-Twombly and Iqbal support the argument that
Twombly and Iqbal “plausibility” standard really is not a marked departure
from the practical import of the Conley “no set of facts” standard.
Today, Judge Posner describes the Twombly and Iqbal pleading regime
as a distinction without jurisprudential significance because much like courts
interpreted Conley, a Rule 12(b)(6) motion is granted if the allegations render a
claim implausible. See Swanson v. Citibank, N.A., 614 F.3d 400, 408–09 (7th
Cir. 2010) (Posner, J., dissenting). However, practically, Twombly and Iqbal
remain significant, notwithstanding whether the pleading standard has really
changed, because of the alarming frequency of Rule 12(b)(6) motions and the
correlated fraudulent joinder claims filed by defendants seeking dismissal or
defendants seeking removal. See, e.g., supra note 43 and the cases cited for an
illustration of the Twombly and Iqbal’s effect on the frequency of fraudulent
joinder claims.
159. Conley, 355 U.S. at 47; see also Dioguardi, 139 F.2d at 775 (cautioning
that “judicial haste which in the long run makes waste” and interpreting the
Rule 12(b)(6) as an extreme instance when courts will dismiss a plaintiff’s claim
only when the defendant does not have notice of the claim alleged).
160. Id. at 47–48. Today, discovery gamesmanship, and the rising costs
resulting therefrom, are not a means to narrow the issues in a case, but instead
a method to either outlast less fortunate litigants or manipulate settlement
values. See, e.g., Edward D. Cavanagh, Making Sense of Twombly, 63 S.C. L.
Rev. 97, 127 n. 294 (2011) (internal citation omitted) (explaining Twombly “is
designed to spare defendants the expense of responding to bulky, burdensome
discovery unless the complaint provides enough information to enable an
inference that the suit has sufficient merit to warrant putting the defendant to
the burden of responding to at least a limited discovery demand.”).
161. See Bell Atl. Corp. v. Twombly, 550 U.S. ___, ___, 127 S. Ct. 1955,
1968–69 (2007).
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be taken as true, but the alleged conclusions need not be.162 The
facts pled must only suggest a plausible claim.163 The Court
cautioned that the “no probability” requirement was imposed to
evaluate a Rule 12(b)(6) motion, but emphasized that the alleged
facts must be sufficient to raise a reasonable expectation that
discovery would reveal evidence of the claim.164 In analyzing the
plausibility of the claims, the Court permitted the use of
inferences that favored the defendant in addition to those that
favored the plaintiff.165
Iqbal reaffirmed the plausibility analysis stating that “[a]
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”166 There,
the plaintiff, a Muslim, had been arrested in the United States in
the wake of the 2001 attacks on the World Trade Center and
Pentagon.167 The plaintiff brought a civil action against federal
officials alleging that these officials knowingly condoned a
discriminatory policy leading to “harsh conditions of confinement
on account of his race, religion, or national origin.”168 The Court
held this complaint was factually insufficient because, first, such
conclusory allegations are not entitled to a presumption of
truth.169 Second, the complaint did not state a “plausible claim
for relief” because in the context of the discrimination claim
alleged the Court could not draw any reasonable inference that
the foreign officials were liable for the misconduct alleged.170
Critics of Twombly and Iqbal argue that these decisions did
not depart significantly from the practical application of
Conley.171 In applying Conley, lower courts did not strictly
162.
163.
164.
165.
166.
Id. at ___, 127 S. Ct. at 1959.
Id.
Id.
See id. at ___, 127 S. Ct. at 1972–74.
Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at ___, 127 S. Ct. at 1955).
167. Id.
168. Id.
169. Id. at 1949–50 (citing Bell Atl. Corp. v. Twombly, 550 U.S. ___, ___, 127
S.Ct. 1955 (2007)).
170. See id. at 1950.
171. See Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play
760
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adhere to the “no set of facts” standard because strict adherence
would lead courts to deny almost every motion to dismiss.172
There would always be a set of facts conceivable by the judiciary,
which allows plaintiffs to survive a Rule 12(b)(6) motion to
dismiss. Thus, as the critics suggest, Twombly and Iqbal only
represent the Court’s effort to pen language explaining the way
lower courts have always interpreted the Rule 8 pleading
requirements.173 Those criticisms notwithstanding, Twombly and
Iqbal remain significant for the purposes of fraudulent joinder
because foreign defendants correctly view the accompanying Rule
12(b)(6) standard as the proxy for the first step of the fraudulent
joinder inquiry.
B. The Federal Pleading Standards And Fraudulent Joinder:
Two Doctrines Converge
Under a Rule 12(b)(6) motion, courts use their discretion to
determine whether a plaintiff alleged facts giving rise to a
on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 22 (2010) (noting the
judicial discretion granted to district court judges invoked by the plausibility
pleading requirement post Twombly and Iqbal); Thomas O. Main, Procedural
Uniformity and the Exaggerated Role of Rules: A Survey of Intra-State
Uniformity in Three States That Have Not Adopted the Federal Rules of Civil
Procedure, 46 VILL. L. REV. 311, 376–77 (2001) (acknowledging the judicial
discretion inherent in the more liberal notice pleading standards articulated by
the Court in Conley). As some scholars contend, the net effect of Twombly and
Iqbal is not insignificant because district court judges continue to use their
discretion regardless of whether the Court imposes a “plausibility” pleading
requirement or only grants a Rule 26 (b)(6) dismissal if the plaintiff cannot
recover under “ay set of facts.” See Sutliff, Inc. v. Donovan Co., 727 F.2d 648,
654 (7th Cir. 1984). (“Although the exceedingly forgiving attitude toward
pleading deficiencies that was expressed by Justice Black for the Supreme
Court in Conley v. Gibson . . . continues to be quoted with approval, it has never
ben taken literally.”); see also Christopher M. Fairman, the Myth of Notice
Pleading, 45 Ariz. L. Rev. 987, 1059 (2003) (“The Federal Rules ‘erect a
powerful resumption against rejecting pleadings for failure to state a claim.’”).
See generally Janssen, supra note 13, at 577 (noting that some courts reaffirm
that the federal notice pleading regime remains intact, which has thus not
increased the number of dismissals post-Twombly and Iqbal).
172. See supra note 171; see also Mark Hermann & James M. Beck, Opening
Statement: Pleading Standards After Iqbal in Plausible Denial: Should
Congress Overrule Twombly and Iqbal?, 158 U. PA. L. REV. 141, 142–43 (2009).
173. See supra note 171.
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plausible claim for relief.174 Comparatively, courts analyzing
fraudulent joinder claims use their discretion to determine
whether the local defendant is a proper party to the action.175
The volume of fraudulent joinder opinions highlights the
correlation between the analysis of a Rule 12(b)(6) motion—postTwombly and Iqbal—and a fraudulent joinder claim because
almost forty percent of all fraudulent joinder opinions have
arisen post-Twombly and Iqbal.176 This significant increase is
due to the shared characteristics between the analysis for a
fraudulent joinder claim and a Rule 12(b)(6) motion.177
Because the analytical standard applied to fraudulent joinder
claims is not clear, Twombly and Iqbal must serve as a proxy to
determine whether or not the plaintiff has stated a claim against
the local defendant.178 The expanding depth of the inquiry on a
Rule 12(b)(6) motion parallels the expansion of the first step of
the procedural analysis in fraudulent joinder litigation. The
district court decision in Askew demonstrates the convergence of
fraudulent joinder and Rule 12(b)(6)-motion practice.179
In Askew, the plaintiff brought a products-liability action
against the designers, manufacturers, and sole distributor of a
medical device.180 A Georgia district court denied the plaintiff’s
174. See supra note 158 and accompanying text.
175. Compare Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)
(applying a reasonable basis for the claim test), with Hartley v. CSX Transp.,
Inc., 187 F.3d 422, 424 (4th Cir. 1999) (applying a no possibility of recovery
test).
176. See supra note 43.
177. See, e.g., Askew v. DC Med., LLC, No. 1:11-cv-1245-WSD, 2011 WL
1811433, at *5 n.5 (N.D. Ga. May 12, 2011) (“Although the [c]ourt applies the
standards governing allegations of fraudulent joinder to this case rather than
the [post-Twombly and Iqbal] pleading standards, those cases usefully illustrate
the inadequacy of Plaintiff’s conclusory allegations to rebut uncontroverted
affidavit testimony denying [the local defendant’s] knowledge of the [product’s]
alleged defects.”).
178. See, e.g., Tofighbakhsh v. Wells Fargo & Co., No. 10-830-SC, 2010 WL
2486412, at *3 (N.D. Cal. June 16, 2010) (accepting defendant’s argument that
the Supreme Court’s interpretation of Rule 8 could serve as an analog for the
first step of the fraudulent joinder analysis, but ultimately granting the
plaintiff’s motion to remand because the defendant failed to provide clear and
convincing evidence proving that the causes of action against the local
defendant would obviously fail according to the controlling state’s law).
179. See Askew, 2011 WL 1811433, at *5 n.5.
180. Id. at *1.
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Fraudulent Joinder Litigation
motion to remand because the plaintiff did not properly allege
claims of liability against the local defendant—the sole
distributor of the medical device.181 To reach this conclusion, the
court first looked at the allegations of the complaint, citing
Twombly, Iqbal, and the Rule 12(b)(6) standard to conclude that
the plaintiff’s allegations against the local defendant were merely
conclusory.182 Next, the court looked to the affidavit submitted
by the local defendant denying any knowledge of the alleged
defects in the device at issue.183 The court concluded that
because the plaintiff did not controvert the affidavit testimony
submitted by the defendant, plaintiff did not allege a plausible
Therefore, the local
claim against the local defendant.184
defendant’s presence in the lawsuit was ignored and the motion
to remand was denied.185
This approach illustrates the correct application of Twombly,
Iqbal, and the Rule 12(b)(6) standard to the first step of the
fraudulent joinder inquiry. Much like Twombly, Iqbal, and the
Rule 12(b)(6) motion grant courts the discretion to dismiss
factually insufficient claims, applying the Rule 12(b)(6) standard
to the first step of the fraudulent joinder inquiry grants courts
the discretion to determine whether removal jurisdiction is
proper.186 However, unlike the typical Rule 12(b)(6) motion, the
conclusion reached at the first stage of the fraudulent joinder
inquiry applying the Rule 12(b)(6) standard is not outcome
determinative.187 Instead, courts consider testimony outside of
the complaint to determine whether a claim has been alleged
against the local defendant, rendering diversity jurisdiction
improper.188
Unlike Askew, where the court acknowledged the logical
parallel between a Rule 12(b)(6) motion and the first step of the
fraudulent joinder inquiry, the Alabama district court in Nelson
181.
182.
183.
184.
185.
186.
187.
188.
Id. at *8.
Id. at *5 n.5.
Id. at *5.
Id. at *7.
See id. at *8.
See id. at *5 n.5.
See id.
See, e.g., id.
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v. Whirlpool Corp. cited Rule 11 to support the denial of the
plaintiff’s motion to remand.189 The Nelson court incorrectly
relied on Rule 11 to uphold removal because Rule 11 is primarily
used to impose sanctions on attorneys who file objectively
unreasonable motions, not to determine whether a party is
properly joined.190 Applying Rule 11 to the first step of the
fraudulent joinder inquiry misunderstands the nature of the
fraudulent joinder analysis because courts have departed from
inquiring into the subjective basis of the plaintiff’s claims against
Further,
the
Nelson
court
the
local
defendant.191
mischaracterized its application of Rule 11 to deny the motion to
remand, stating that Rule 11 looks to whether the factual
contentions have evidentiary support or whether those
contentions will have evidentiary support after a reasonable
opportunity to investigate.192 First, Rule 11 does not provide a
procedural or substantive remedy; instead, Congress codified the
rule to sanction attorneys acting in bad faith.193 Second, the
Nelson court did not deny the plaintiff’s motion to remand
because the plaintiff’s claims against the local defendant “would
not have evidentiary support after a reasonable investigation.”
The court denied the motion to remand because there were no
facts stated in the complaint or in the testimony considered
outside of the complaint that plausibly stated a claim against the
local defendant.194
Nelson is easily reconciled with Askew. In effect, the Nelson
court applied the Rule 12(b)(6) standard, just like Askew, to
determine whether the plaintiff properly joined the local
189. See Nelson v. Whirlpool Corp., 688 F. Supp. 2d 1368, 1377 (S.D. Ala.
2009).
190. See Note, Plausible Pleadings: Developing Standards for Rule 11
Sanctions, 100 HARV. L. REV. 630, 631 (1987) (explaining that Congress codified
Rule 11 in 1983 to deter frivolous litigation more effectively).
191. See, e.g., Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 575 (5th Cir.
2004) (quoting Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 153 (1914)
(“The Court reasoned that although the plaintiff’s petition may have disclosed
an absence of good faith on the part of the plaintiff in bringing the action at all,
. . . it did not show a fraudulent joinder of the engineer and fireman.” (internal
quotation marks omitted) (citation omitted)).
192. See FED. R. CIV. P. 11(b)(3); Nelson, 688 F. Supp. 2d at 1377.
193. See FED. R. CIV. P. 11.
194. See Nelson, 688 F. Supp. 2d at 1377.
764
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Fraudulent Joinder Litigation
defendant by alleging a plausible claim for relief. But, the
Nelson court couched their inquiry under Rule 11 because of the
federalism and comity that are mooted at the second stage of the
fraudulent joinder inquiry. Further, courts have recognized that
applying the Rule 12(b)(6) standard to the first step of the
fraudulent joinder inquiry is not outcome determinative.195
Ultimately, applying Rule 8 and the standard to survive a Rule
12(b)(6) motion—as reinterpreted by Twombly and Iqbal—to the
first analytical step of the fraudulent joinder analysis provides a
uniform means to evaluate whether the plaintiff maintains a
claim against the local defendant. The resulting uniformity will
have a deleterious effect on the volume of fraudulent joinder
litigation because litigants seeking removal will understand the
standard applied to evaluate their notice of removal and the
accompanying motion to remand.
IV. PIERCING THE PLEADINGS: DISPELLING THE
FEDERALISM CONCERNS OF USING A
RULE 12(B)(6) STANDARD AT THE FIRST
STAGE OF THE FRAUDULENT JOINDER INQUIRY
If a court determines that a plaintiff has not or cannot state a
plausible claim for relief against the local defendant, the court
then considers summary judgment-type evidence to determine
whether a plaintiff has or can allege a plausible claim for relief
By considering additional
against the local defendant.196
evidence beyond the complaint to determine if a claim has or can
be alleged against the local defendant, courts account for the
federalism concerns that are cited in support of rejecting the Rule
12(b)(6) standard.197 To understand how piercing the pleadings
195. See, e.g., Escuadra v. Geovera Specialty Ins. Co., 739 F. Supp. 2d 967,
982 (E.D. Tex. 2010) (noting that even if the court applied the Rule 12(b)(6)
standard expressly, the court would reach the same jurisdictional result
because the evidence considered beyond the complaint clarified the
jurisdictional question).
196. See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573–74 (5th Cir.
2004) (explaining the summary judgment-like procedure when the courts pierce
the pleadings to determine whether the plaintiff’s joinder of the resident
defendant is proper).
197. See Healy v. Ratta, 292 U.S. 263, 270 (1934) (explaining the comity
interests underscoring the strict construction of removal statutes conferring
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dispels the federalism concerns of using the Rule 12(b)(6)
standard to answer a jurisdictional question, a contrast between
the American summary judgment procedure and the summary
judgment-like procedure used in the second step of the
fraudulent joinder inquiry is necessary.
The American summary judgment procedure is derived from
a mid-nineteenth century English procedure where the plaintiff
could move for summary judgment against the defendant to
expedite the collection of debt owed to the plaintiff by the debtor
defendant.198 Courts only allowed this process if no dispute
existed regarding the existence of an agreement between the
plaintiff and the defendant.199 The American summary judgment
procedure significantly expanded the English procedure by
permitting all parties to move for summary judgment and to
permit summary judgment in every type of case.200 Pursuant to
Federal Rule of Civil Procedure 56(c) (Rule 56), courts now order
summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the [moving
party] is entitled to judgment as a matter of law.”201 Until 1986,
courts interpreted Rule 56 to require the moving party to point to
actual evidence in the record showing the absence of a disputed
issue of material fact.202
Today, the standard is more relaxed because the Supreme
jurisdiction in federal courts).
198. See, e.g., Arthur R. Miller, The Pretrial Rush to Judgment: Are the
“Litigation Explosion,” “Liability Crisis,” and Efficiency Cliches Eroding Our
Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. REV. 982, 1016–17
(2003).
199. See Fid. & Deposit Co. v. United States, 187 U.S. 315, 320 (1902)
(describing the early summary judgment procedure as the means “to prevent
vexatious delays in the maturing of a judgment where there is no defense” and
thus implying that there has to be no dispute before the remedy is granted).
200. See, e.g., Stephen B. Burbank, Vanishing Trials and Summary
Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1
J. EMPIRICAL LEGAL STUD. 591, 592 (2004).
201. See FED. R. CIV. P. 56(c).
202. See, e.g., Arnstein v. Porter, 154 F.2d 464 (1946) (denying the motion
for summary judgment because the defendant did not disprove that the plaintiff
should be entitled to a credibility determination by cross-examination the
testimony offered in support of the motion for summary judgment); Patricia M.
Wald, Summary Judgment at Sixty, 76 TEX. L. REV. 1897, 1905 (1998).
766
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Fraudulent Joinder Litigation
Court now requires the non-moving party to show that there is
more than some metaphysical doubt as to the material facts after
the party moving for summary judgment proves there is no
genuine issue of material fact.203 In order to satisfy this burden,
the non-movant “must come forward with ‘specific facts showing
that there is a genuine issue for trial.’”204 As a result, the Court
relaxed the summary judgment standard on moving parties by
shifting the burden to the non-moving parties if the Court
determines there is no genuine issue of material fact.205 Today’s
expanded summary judgment inquiry weighs the evidence
presented at the summary judgment stage to determine whether
the non-moving party has a plausible ability to recover in light of
the evidence brought forward by the moving party.206
The expansion of the summary judgment proceeding is
significant because in 1986—when the Court delivered the
famous trilogy of summary judgment cases endorsing a more
intrusive inquiry into the merits of the case207—plaintiffs were
only required to provide defendants “notice” of the claims
During this notice-pleading era, the summary
alleged.208
judgment procedure was the means by which factually
insufficient claims could be dismissed before trial.209 However,
Twombly and Iqbal vanquished the era of notice pleading. As a
result, courts intrude into the factual merits of a claim at both
the pleading stage and when a party moves for summary
judgment.210
203. See, e.g., Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 577–78 (1986).
204. Id. at 587 (quoting FED. R. CIV. P. 56(e) (2006) (amended 2007)).
205. See Wald, supra note 202.
206. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 266–67 (1986)
(Brennan, J., dissenting).
207. See Matsushita Electric Indus., 475 U.S. at 577–78; Anderson, 477 U.S.
at 252–54; Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
208. See Conley v. Gibson, 355 U.S. 41, 45–46 (1957). Some scholars argue
that the post-Twombly and Iqbal factual plausibility standards do not
significantly depart from the notice-pleading era of Conley. See, e.g., Janssen,
supra note 13; Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ.
L. REV. 987, 1059 (2003). The argument continues that in lieu of Conley’s noticepleading requirement, lower courts fashioned their own plausibility standard in
order to dispose of unmeritorious litigation. Fairman, supra, at 1059.
209. See Celotex Corp., 477 U.S. at 327.
210. See, e.g., Bell Atlantic Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955
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The expansion of the summary judgment procedure gives
plaintiffs another chance to prove the proper joinder of the
resident defendant.211 However, unlike the current summary
judgment procedure, piercing the pleadings imposes a clear and
convincing burden on defendants to prove that the plaintiff has
not introduced any facts beyond the complaint, which gives rise
to a plausible claim for relief.212 Because courts impose a higher
burden on defendants when piercing the pleadings than the
burden imposed at a summary judgment proceeding, courts
should ignore those federalism concerns that critics use to argue
against applying the Rule 12(b)(6) standard to the first step of
the fraudulent joinder inquiry.
A Ninth Circuit district court crystallizes how piercing the
pleadings, the second step of the fraudulent joinder inquiry,
protects the federalism and comity concerns raised by answering
a jurisdictional question with a merit-based proxy.213 The
California district court acknowledged that mere conclusory
allegations are not sufficient to join the local defendant to the
claim and defeat diversity jurisdiction.214 While the court
expressly declined to apply Twombly, Iqbal, and a Rule 12(b)(6)
standard, the court granted the motion to remand because the
defendant did not prove by clear and convincing evidence that no
claim had been alleged against the local defendant under
California state law.215 The plaintiff created a factual dispute
with evidence presented beyond the pleadings to suggest that the
acquisition of Wachovia by Wells Fargo resulted in a breach of
the plaintiff’s mortgage loan contract.216 The process by which
the Wells Fargo court remanded the case illustrates how the
second step of the fraudulent joinder inquiry allays the
(2007); Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937 (2009).
211. See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573–74 (5th Cir.
2004) (explaining the summary judgment-like procedure when the courts pierce
the pleadings to determine whether the plaintiff’s joinder of the resident
defendant is proper).
212. See Henderson v. Washington Nat. Ins. Co., 454 F.3d 1278, 1281 (11th
Cir. 2006).
213. See Tofighbakhsh v. Wells Fargo & Company, No. 10-830 SC, 2012 WL
2486412 (N.D. Cal. June 16, 2010).
214. Id. at *3.
215. Id.
216. Id. at *1.
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Fraudulent Joinder Litigation
federalism concerns often cited by courts refusing to apply
Twombly and Iqbal to fraudulent joinder claims.217
The Wells Fargo court balked at the express application of
Twombly and Iqbal because Rule 8 is not the pleading
requirement in California state courts.218 However, the court
granted the motion to remand because the defendant was unable
to carry its burden at the second stage of the fraudulent joinder
inquiry.219 The Wells Fargo court granted the plaintiff’s motion to
remand after both the plaintiff and defendant brought summary
judgment-type evidence, where the plaintiff presented facts
giving a plausible claim against the local defendant.220 The clear
and convincing burden applied at the piercing the pleadings
stage of the fraudulent joinder inquiry protects against
federalism and comity concerns because it is more difficult for
217. See id. at *3 (implying the court’s reliance on declarations made
outside the complaint to support granting the motion to remand because a
plausible claim existed against the local defendant).
218. In order to state a claim in California, a plaintiff must include both a
“statement of the facts constituting the cause of action, in ordinary and concise
language [and] [a] demand for judgment for the relief to which the pleader
claims to be entitled.” CAL. CIV. PROC. CODE § 425.10 (West 2000). In
comparison, to state a claim in federal court, a plaintiff must include “a short
and plain statement of the grounds for the court’s jurisdiction . . . , a short and
plain statement of the claim showing that the pleader is entitled to relief, and a
demand for the relief sought, which may include relief in the alternative or
different types of relief. FED. R. CIV. P. 8(a). Semantically, the California
pleading standards do not seem materially different from the federal pleading
standards; however, California instructs its courts to liberally construe a
pleading with a view to substantial justice between the parties. CAL. CIV. PROC.
CODE § 452 (West 2000). On the other hand, federal courts are guided by the
interpretation of Rule 8(a) from Twombly and Iqbal, where the Court stated
that in order to state a claim for relief under the Federal Rules of Civil
Procedure, the complaint must state enough facts to give rise to a plausible
claim for relief. See Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955,
1969 (2007); Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1950 (2009).
219. See Tofighbakhsh v. Wells Fargo & Company, No. 10-830 SC, 2012 WL
2486412, at *3 (N.D. Cal. June 16, 2010).
220. See Magallanes v. Penske Logistics, LLC, 570 F. Supp. 2d 907, 912
(W.D. Tex. 2008). “The removing party must prove by clear and convincing
evidence that the joinder of the in-state party was improper.” Id. (citations
omitted). “The Court may ‘pierce the pleadings and consider summary
judgment-type evidence in the record, but must also take into account all
unchallenged factual allegations . . . in the light most favorable to the
plaintiff.’” Id. (internal quotation marks omitted) (quoting Travis v. Irby, 326
F.3d 644, 649 (5th Cir. 2003) (citation omitted)).
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[Volume VI
removing defendants to prove that the plaintiff has not or cannot
allege a plausible claim after the plaintiff brings forward new
facts beyond the complaint.221 Unlike the traditional summary
judgment procedure where courts shift the burden to the nonmoving party after the moving party proves there is no genuine
issue of material fact, the burden never shifts at the piercing the
pleadings stage of the fraudulent joinder inquiry. This burden
reflects federal courts’ general preference to remand cases back
to state court when there is a possibility the plaintiff can recover
against the local defendant.222
Much like Escuadra, adopting the Rule 12(b)(6) standard
would not have been outcome determinative in the Wells Fargo
case.223 The Rule 12(b)(6) standard provides an objective
indicator to determine the nature of the plaintiff’s claim alleged
against the local defendant. First, the defendant must prove that
the plaintiff’s claims against the resident defendant would not
withstand a Rule 12(b)(6) motion. Then, the defendant must
prove that, even considering the new evidence beyond the
complaint and after the court pierces the pleadings, the plaintiff
has not and cannot allege a plausible claim against the resident
defendant.224 At this point, the fraudulent joinder inquiry
protects our dual court systems preference for state courts to
adjudicate claims interpreting their law, especially when the
parties are not completely diverse.225 Ultimately, the Wells
Fargo decision shows how applying a clear and convincing
221. See supra notes 199–206 explaining the evolution of the summary
judgment procedure and providing a contrast to the summary judgment-like
procedure applied when courts pierce the pleadings during the second stage of
the fraudulent joinder inquiry.
222. See Healy v. Ratta, 292 U.S. 263, 270 (1934).
223. See Escuadra v. Geovera Specialty Ins. Co., 739 F. Supp. 2d 967, 974
(E.D. Tex. 2010) (explaining that, because plaintiffs get two bites at the apple to
prove a plausible claim exists against the local defendant, the Rule 12(b)(6)
inquiry is not outcome determinative).
224. See, e.g., Gray v. Beverly Enterprises-Mississippi, Inc., 903 F.3d 400,
410 (5th Cir. 2004) (rejecting implicitly the application of the Rule 12(b)(6)
standard to the fraudulent joinder analysis, but answering the fraudulent
joinder question based on the factual dispute that was created by the plaintiff in
the evidence presented beyond the pleadings).
225. See supra notes 27–32 for a discussion of Erie and the federalism
concerns which underlie federal courts’ exercise of diversity jurisdiction; see also
Healy v. Ratta, 292 U.S. 263, 270 (1934).
770
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Fraudulent Joinder Litigation
standard when courts pierce the pleadings eschews the concern
of improperly retaining jurisdiction when a local defendant is a
proper party to the action.226 The solution is simple—do not
detach Twombly and Iqbal from the first step of the fraudulent
joinder inquiry because logically, the doctrines are too similar;
and thus the analyses should also be similar. This approach
reconciles the resulting ambiguity in the standards across the
circuits to evaluate fraudulent joinder.227 The approach also
separates the fraudulent joinder analysis into a clear, bifurcated
two-step process grounded in standards that courts understand
through voluminous experience handling motions to dismiss and
motions for summary judgment.
V. CONCLUSION
Federal circuits routinely fail to acknowledge Twombly and
Iqbal as an easy, appropriate, and clear proxy for the first
procedural step of the fraudulent joinder inquiry.228 In failing to
recognize this easy analog, courts are perpetuating confusion,
which contributes to the rise in fraudulent joinder claims.229
Defendants correctly view the Rule 12(b)(6) inquiry,
reinterpreted by Twombly and Iqbal, as the method to determine
whether a plaintiff alleges a plausible claim for relief against the
local defendant.230 Rejecting the Rule 12(b)(6) inquiry as a proxy
226. See 16 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE §107.14
(2)(c)(iv)(A) (3d ed. 2011) (explaining that claim for fraudulent joinder must be
supported by clear and convincing evidence).
227. Compare Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)
(applying a reasonable basis for the claim test) with Hartley v. CSX Transp.,
Inc., 187 F.3d 422, 424 (4th Cir. 1999) (applying the no possibility of recovery
test). The difference between these two tests, notwithstanding the semantic
differences, seems to turn on different ways of characterizing the heavy burden
imposed on defendants to sustain removal on the basis of fraudulent joinder.
228. See, e.g., Nelson v. Whirlpool Corp., 668 F. Supp. 2d 1368, 1377 (S.D.
Ala. 2009) (applying Rule 11 instead of the Rule 12(b)(6) standard); Escuadra v.
Geovera Specialty Ins. Co., 739 F. Supp. 2d 967, 974 (E.D. Tex. 2010) (rejecting
the Rule 12(b)(6) standard but acknowledging the standard’s similarity with the
fraudulent joinder inquiry).
229. See supra note 43.
230. See, e.g., Escuadra, 739 F. Supp. 2d at 974 (illustrating why
defendants’ view is correct given the substantial similarities between a Rule
12(b)(6) inquiry and a fraudulent joinder inquiry).
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[Volume VI
out of deference to state pleading requirements is inappropriate
because the subsequent procedural step, where the court goes
beyond the pleadings, imposes a sufficient burden on the
defendant to preserve the principles of our dual court system.231
Until federal courts clarify the standard applied to evaluate
fraudulent joinder claims, the efficiency of the judiciary will
suffer.
231. See, e.g., Tofighbakhsh v. Wells Fargo & Co., No. 10-830-SC, 2010 WL
2486412, at *3 (N.D. Cal. June 16, 2010) (underscoring the burden imposed on
defendants to prove a fraudulent joinder claim and defeat a plaintiff’s motion to
remand).
772
THE PUBLIC DEBT CLAUSE DEBATE: WHO
CONTROLS THIS LOST SECTION OF THE
FOURTEENTH AMENDMENT?
Daniel Strickland*
I.
II.
III.
IV.
V.
INTRODUCTION .............................................................. 776
THE HISTORY OF SECTION FOUR ILLUSTRATES
ITS PURPOSE ................................................................... 778
A. The Historical Context of Section Four Is Full of
Conflict ........................................................................ 779
B. Section Four’s Language Indicates the Intent for
Broad Application ....................................................... 782
C. Section Five of the Fourteenth Amendment Grants
Congress the Authority to Enforce Section Four ....... 784
THE CASE LAW SURROUNDING SECTIONFOUR IS
DEFINITIVE ..................................................................... 786
A. The Only Supreme Court Decision Regarding
Section Four Yields a Broad Interpretation ............... 786
B. The Lower Courts Cannot Agree on a Consistent
Interpretation of Section Four .................................... 788
C. Section Four Applies to the National Debt, but Can
the President Use This to Fix the Problem?............... 790
THE PRESIDENT IS NOT ENTITLED TO USE
SECTION FOUR ............................................................... 792
A. House Concurrent Resolution Sixty-Nine Fails to
Account for Congressional Authority Established
in Section Five of the Fourteenth Amendment .......... 795
B. The “Debt Crisis” Is Not an Emergency Situation ...... 796
C. Drawing a Line in the Sand Is a Slippery Slope ......... 798
D. Impeachment Is the Last Stand ................................. 799
E. The Authority to Act Is Vested in Congress ............... 800
CONCLUSION .................................................................. 802
775
CHARLESTON LAW REVIEW
[Volume VI
I. INTRODUCTION
In a meeting with Justice Ruth Bader Ginsburg inside the
Supreme Court of the United States, many questions were asked,
but there was only one that she specifically declined to address.1
That question came to dominate the political and legal
discussions in the summer and fall of 2011. Can the President of
the United States apply Section Four of the Fourteenth
Amendment to the debt ceiling to declare it unconstitutional?
Until World War I, congressional approval was required each
time the government wanted to borrow money from the public.2
In 1917, Congress enacted the Second Liberty Bond Act, setting
an upper limit to the amount of money the Treasury can borrow
from the public without seeking congressional appoval.3 This
limit can be, and often has been, raised with congressional
approval.4 On February 12, 2010, the debt ceiling was set at
$14.294 trillion.5 On August 2, 2011, less than eighteen months
later, Congress authorized the Secretary of the Treasury to
* J.D. Candidate, May 2013, Charleston School of Law; B.S., University of
South Carolina, Upstate. First, I would like to thank my parents, John and
Sharon Strickland, for the sacrifices they have made in order to provide me
many great opportunities for success. I would also like to thank my fiancée,
Lauren Elizabeth Linn for her emotional support and encouragement during
my time in law school. Last, I would like to thank my good friend, Nathan
Williams, for sacrificing the common area of our house for the greater good of
my legal career.
1. During the summer of 2011, the author worked as an intern for
Representative Joe Wilson, and was invited to a small meeting inside the
Supreme Court with Justice Ruth Bader Ginsburg. At this meeting, she spoke
about life as a Supreme Court Justice, her personal interests, and opened the
floor for questions.
2. See U.S. CONST. art. I, § 8 (“The Congress shall have Power To lay and
collect Taxes . . . to pay the Debts . . . [and] To borrow Money on the credit of the
United States . . . .”).
3. Pub. L. No. 65-43, § 1, 40 Stat. 288 (1917).
4. See Victor Williams, Unconstitutional Debt Ceiling: Grandma
Bondholder’s Emergency Lawsuit If Obama Does Not Invoke 14th Amendment,
HUFFINGTON POST (July 29, 2011, 6:23 PM), http://www.huffingtonpost.com/
victor-williams/uncon stitutional-debt-cei_b_913309.html (“Since 1962, 74 debt
ceiling bills have been passed by Congress and signed into law by eight different
presidents.”).
5. Public Debt Limit Increase, Pub. L. No. 111-139, 124 Stat. 8 (2010) (to
be codified at 31 U.S.C. § 3101(b)).
776
2012]
Public Debt Clause Debate
borrow an additional $900 billion,6 which effectively raised the
ceiling to $15.194 trillion. With the national debt creeping
towards this statutory debt ceiling, a crisis loomed over Congress
and the United States.7 In order to prevent the United States
from defaulting, Democratic Party leaders urged the President to
utilize often-overlooked Section Four of the Fourteenth
Amendment to declare the nation’s debt ceiling unconstitutional.8
The pertinent part of Section Four states: “The validity of the
public debt of the United States . . . shall not be questioned.”9
This Note proposes that Section Four is not intended to be an
escape hatch for our nation’s debt ceiling. Congress is granted
the “power of the purse,” and no provision of the Constitution
allows the President to simply assume control over what is
granted as a legislative responsibility.10 In fact, the President’s
power drops to its “lowest ebb” when it is exercised against the
will of Congress.11 The President must not disrupt Congress’s
ability to exercise its constitutionally granted authority to
enforce this provision, and simultaneously, he must allow it to be
accountable to the citizens of the United States without
6. Budget Control Act of 2011, Pub. L. No. 112-25, § 301, 125 Stat. 240,
251 (2011) (to be codified at 31 U.S.C. § 3101A(a)(1)).
7. Laurence H. Tribe, Op-Ed., A Ceiling We Can’t Wish Away, N.Y. TIMES,
July 7, 2011, http://www.nytimes.com/2011/07/08/opinion/08tribe.html (“O[n]
May 16, [2011,] the United States hit its legal debt limit of $14.3 trillion.”).
8. See, e.g., Alicia M. Cohn, Sen. Harkin: Nothing Prevents Obama from
Using 14th Amendment, BLOG BRIEFING ROOM (July 29, 2011, 9:12 AM),
http://thehill.com/blogs/blog-briefing-room/news/174321-sen-harkin-nothingprevents-obama-from-using-14th-amendment (“Most of the pressure is coming
from the House side . . . [namely] Assistant Democratic Leader James Clyburn .
. . .”); Mike Lillis, House Democrats Urge Obama to Invoke the 14th Amendment
in Debt Fight, THE HILL (July 27, 2011, 11:26 AM), http://thehill.com/homenews/
house/173823-house-democrats-urge-obama-to-invoke-the-14th-amendment
(noting Chair of the Democratic Caucus, John Larson, supports the President’s
use of Section Four of the Fourteenth Amendment); Brad Plumer & Aaron
Blake, Debt-Limit Standoff: Top Democrats Revive 14th Amendment Option to
Raise Ceiling, WASH. POST, July 29, 2011, http://www.washingtonpost.
com/business/economy/debt-limit-standoff-top-democrats-revive-14th-amend
ment-option-to-raise-ceiling/2011/07/29/gIQAnsr2hI_story.html (noting House
Minority Whip Steny H. Hoyer’s position that invoking Section Four would be
“the least bad option if Congress doesn’t act”).
9. U.S. CONST. amend. XIV, § 4.
10. U.S. CONST. art. I, § 8.
11. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952)
(Jackson, J., concurring).
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CHARLESTON LAW REVIEW
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interference.12 However, he can propose a bipartisan solution
and encourage his fellow Democratic Party members to yield
ground to their Republican counterparts to establish a balanced
budget for the United States and prevent the government from
defaulting on its obligations. Part II of this Note discusses the
historical context surrounding this constitutional provision; it
looks at the language that the drafters of Section Four used; and
it shows that Section Five of the Fourteenth Amendment grants
the authority to enforce Section Four to Congress. Part III
examines the limited case law surrounding this controversial
section of the Fourteenth Amendment. Part IV evaluates the
opinions of leading constitutional scholars and politicians
regarding the application of Section Four to the nation’s debt
ceiling.
II. THE HISTORY OF SECTION FOUR ILLUSTRATES ITS
PURPOSE
To answer the question of under whose authority Section
Four falls, the context in which this section was written must be
examined, the language used must be understood, and Section
Four must be evaluated with respect to Section Five of the
Fourteenth Amendment. On April 9, 1865, after a four-year civil
war of unprecedented suffering, Robert E. Lee surrendered, and
the United States effectively defeated the Confederacy.13 A little
over a year later, the Thirty-Ninth Congress adopted the
Fourteenth Amendment to the United States Constitution.14 The
most commonly known sections of the Fourteenth Amendment
are Sections One15 and Five,16 which routinely are addressed
12. See generally id. at 637–40.
13. JOHN H. EICHER & DAVID J. EICHER, CIVIL WAR HIGH COMMANDS 918
(2001).
14. The Fourteenth Amendment was proposed by Joint Resolution on June
16, 1866. J. Res. 48, 39th Cong., 14 Stat. 358 (1866) (codified at U.S. CONST.
amend. XIV). On July 28, 1868, Secretary of State William Henry Seward
certified that the amendment had become part of the Constitution by virtue of
the requisite number of states having approved it. 15 Stat. 708, 710 (1868).
15. Section One of the Fourteenth Amendment addresses citizenship, due
process, and equal protection. U.S. CONST. amend. XIV, § 1.
16. Section Five of the Fourteenth Amendment grants Congress the
authority to enforce “the provisions of this article.” Id. § 5.
778
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Public Debt Clause Debate
with respect to the constitutional protection of citizens of the
United States. Unlike these sections, Section Four is rarely
mentioned or used today; it states in its entirety:
The validity of the public debt of the United States, authorized
by law, including debts incurred for payment of pensions and
bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any
State shall assume or pay any debt or obligation incurred in
aid of insurrection or rebellion against the United States, or
any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.17
A. The Historical Context of Section Four Is Full of Conflict
During the Civil War, the value of United States debt
declined substantially.18 The continual decline in value of United
States bonds, as their maturity date approached, suggests there
was some degree of uncertainty regarding the possibility of the
United States defaulting.19 Additionally, this decline may be
partially credited to rising interest rates, which were the result
of the steep increase in the amount of public debt.20 Despite the
decline in value of the bonds, members of Congress felt morally
obligated to honor the public debt that had been incurred.21 This
desire could be partially attributable to the debt’s steep increase
in volume between 1860 and 1866.22 A constitutional guarantee
17. U.S. CONST. amend. XIV, § 4.
18. See DOUGLAS B. BALL, FINANCIAL FAILURE AND CONFEDERATE DEFEAT
132 (1991) (noting that ten-year, six percent bonds issued in 1858 declined in
value fourteen percent by 1861, thirty-six percent by 1862, and forty-six percent
by 1864).
19. See generally George T. McCandless Jr., Money, Expectations, and the
U.S. Civil War, 86 AM. ECON. REV. 661 (1996) (discussing the reasoning behind
the shift in gold price of United States currency).
20. Id.
21. In a 162–1 vote, the House of Representatives approved a resolution
that called the public debt “sacred and inviolate.” CONG. GLOBE, 39TH CONG.,
1ST SESS. 10 (1865). It also urged “that any attempt to repudiate, or in any
manner to impair or scale the said debt, should be universally discountenanced
by the people, and promptly rejected by Congress if proposed.” Id.
Representative David Trimble cast the sole vote against this resolution. Id.
22. JAMES D. SAVAGE, BALANCED BUDGETS & AMERICAN POLITICS 288 (1988)
(noting the public debt rose from $64.8 million to $2.76 billion from 1860 to
1866).
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[Volume VI
certainly assured future United States debt holders that their
investments would be safe.23
Along with the economic insecurity of the Reconstruction,
there was also an element of political uncertainty underlying the
insertion of Section Four into the Fourteenth Amendment.24 The
Civil War had concluded and while military uncertainties were
resolved in favor of the Union, Republican members of Congress
were not accorded additional political security.25 Instead, the
conclusion of the war offered an element of insecurity to their
hold on the congressional majority.26 While the Emancipation
Proclamation freed the slaves by unraveling the Three-Fifths
Compromise,27 it also increased the number of citizens that
southern members of the House represented, while decreasing
the number of representatives of their northern counterparts.28
Additionally, upon rejoining the Union, the Confederate states
would reclaim their seats in the Senate.29 This increase of
representation raised concern because the Republican
interpretation of existing law at the time allowed the repudiation
of Confederate debt.30 A change in the political majority of
Congress from Republican to Democratic might have resulted in
Congress honoring the Confederate debt or even repudiating the
23. Michael Abramowicz, Beyond Balanced Budgets, Fourteenth Amendment Style, 33 TULSA L.J. 561, 585 (1997).
24. Id. at 586.
25. Id.
26. See CONG. GLOBE, 39TH CONG., 1ST SESS. 356–59 (1866).
27. See U.S. CONST. art. I, § 2, cl. 3 (counting a slave as three-fifths of a
person for the purpose of apportioning seats in the House of Representatives).
28. In addition to the eighteen members of the House of Representatives
from slaveholding states, Representative Conkling estimated that these states
would gain an additional twenty-eight members because of the Emancipation
Proclamation. See CONG. GLOBE, 39TH CONG., 1ST SESS. 356–59 (1866).
29. See U.S. CONST. art. V (prohibiting amendments depriving
non-consenting states of equal suffrage in the Senate).
30. See CONG. GLOBE, 39TH CONG., 1ST SESS. 3036 (1866) (arguing that
invalidity of Confederate debt reflected the common law principle that
agreements founded on immoral consideration are unenforceable).
Interestingly, Representative Miller previously commented that international
law principles would have demanded the assumption of the debts of the
Confederate states if they were considered to have left the Union and were then
re-annexed. Id. at 2087.
780
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Public Debt Clause Debate
Union’s debt.31
Considering these economic and political contexts of the
Reconstruction, the desire of Congress to impose a permanent
interdiction against default certainly made sense. It was this
unified commitment of Congress to reconstruct our war-ravaged
nation that resulted in the creation of Section Four.32 Not only
did Section Four prevent any future Congress from vacating the
commitment of the Thirty-Ninth Congress to repay the public
debt, it also ensured that Congress would not assume any debt
that resulted from an act against the United States.33 Given the
lack of controversy over this section, it is unsurprising that no
House or Senate member commented for the record on the future
consequences of this section.34
The lack of comment or explanation does not mean that the
original drafters of Section Four desired to amend the
Constitution solely to address the issue at hand.35 Instead, this
void requires looking to the construction of the language used
and the context in which this section was written.36 In fact, one
of the few scholars to evaluate the history of Section Four
tentatively concluded that “the intention was to lay down a
constitutional canon for all time in order to protect and maintain
the national honor and to strengthen the national credit[.]”37
31. Abramowicz, supra note 23, at 586–87. Either of these actions could
have caused irreparable financial harm to the United States. There was also a
public policy concern that arose from honoring the Confederate debt. If this
debt had been honored, it would have sent a message that the United States
was willing to finance both sides of the war.
32. Id. at 582.
33. U.S. CONST. amend. XIV, § 4.
34. See, e.g., JACOBOUS TENBROEK, THE ANTISLAVERY ORIGINS OF THE
FOURTEENTH AMENDMENT 192 (1951) (“Considering the character of the
contemplated action and the fact that a constitutional amendment was at stake,
very little was said on the floor of either House, and what was said related
primarily to the more obviously political sections of the proposal.”); see also
CONG. GLOBE, 39TH CONG., 1ST SESS. 3148 (1866) (“The fourth section, which
renders inviolable the public debt and repudiates the rebel debt, will secure the
approbation of all but traitors.”); Abramowicz, supra note 23, at 587 n.132
(“Section 4 was the subject of little comment on the floor of Congress largely
because of its uncontroversiality.”).
35. Abramowicz, supra note 23, at 582.
36. Id.
37. Phanor J. Eder, A Forgotten Section of the Fourteenth Amendment, 19
CORNELL L.Q. 1, 15 (1933).
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B. Section Four’s Language Indicates the Intent for Broad
Application
When most people refer to Section Four today, they discuss
only its first sentence: “The validity of the public debt of the
United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing
insurrection or rebellion, shall not be questioned.”38 Per the
maxim expressio unius est exclusion alterius, the words used in
legislation are presumed to be those intended by Congress, and
examining the historical meaning of some of these words is
pertinent to understanding the intent of Section Four.39
In 1850, the word “valid” was defined as “[f]irm; good in law;
sound.”40 Currently, it is similarly defined as “[l]egally sufficient;
binding.”41 Both definitions indicate that validity is a present
state of being. This use of generality here in Section Four shows
that instead of validity being determined solely at the point at
which the debt becomes due, it may be determined at any point
during the life of such debt—effectively banning any
governmental action which affects the validity of debt
instruments.42 Additionally, a debt is valid only if there is law
stating that it will be “recognized and enforced.”43 Thus, the duty
not to question a debt is a continuous duty that arises the
moment debt is assumed, and it terminates only upon payment of
the obligation.
38. U.S. CONST. amend XIV, § 4; see, e.g., Jim Abrams, Democrats Say
Obama Should Invoke 14th Amendment, DEL. GAZETTE (July 27, 2011),
http://delgazette.com/2011/07/democrats-say-obama-should-invoke-14th-amend
ment; Amy Bingham, Last-Ditch 14th Amendment Plan Gains Momentum as
Debt Clock Ticks, ABC NEWS (July 28, 2011, 5:59 AM),
http://abcnews.go.com/blogs/politics/2011/07/last-ditch-14th-amendment-plangains-momentum-as-debt-clock-ticks [hereinafter Last-Ditch].
39. Watt v. GMAC Mortg. Corp., 457 F.3d 781 (8th Cir. 2006).
40. NOAH WEBSTER, A DICTIONARY OF THE ENGLISH LANGUAGE: ABRIDGED
FROM THE AMERICAN DICTIONARY 460 (Huntington & Savage, Mason & Law rev.
ed. 1850).
41. BLACK’S LAW DICTIONARY 1690 (9th ed. 2009).
42. Abramowicz, supra note 23, at 593.
43. Among the legal definitions of “valid” is “sustainable and effective in
law, as distinguished from that which exists or took place in fact or appearance,
but has not the requisites to enable it to be recognized and enforced by law.”
BLACK’S LAW DICTIONARY 1550 (6th ed. 1990).
782
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Public Debt Clause Debate
Congress specifically chose the word “including.”44 This
choice indicates that the subsequent list not be exclusive.
“Include” was defined as “to comprise.”45 It illustrates the intent
that the rebellion-related debt be added to what was considered
as public debt, rather than assigning it to a new category.46 It
shows also that Congress viewed the “public debt” as including
both financial instruments and “war pensions and bounties.”47
The inclusion of the passive phrase “shall not be questioned”
provides further insight into how Section Four was intended and
therefore helps reveal why the drafters specifically chose to
incorporate the word “questioned” as opposed to other
alternatives.48 Interestingly, the Thirty-Ninth Congress was not
fond of using passive voice.49 In fact, a portion of the second
sentence of Section Four was intentionally changed to use active
voice by the Joint Committee to avoid the use of passive voice.50
Passive sentences are useful for authors who do not wish to
restrict a verb to a particular actor.51 If Congress meant only
that the United States must not question the validity of its debts,
they could have explicitly stated that intent.52 “While the Public
Debt Clause surely means at least [that the government not
question its own debt], it might also convey, ‘the validity of the
public debt . . . shall not be questioned by the people.’”53
Additionally, the specific use of the word “shall” illustrates the
intent for a specific duty not to question be created.54
44. U.S. CONST. amend. XIV, § 4.
45. WEBSTER, supra note 40, at 197. “Comprise” is subsequently defined as
“[t]o contain.” Id. at 82. Similarly, “include” is currently defined as “[t]o
contain as a part of something.” BLACK’S LAW DICTIONARY 831 (9th ed. 2009).
46. Abramowicz, supra note 23, at 587–88.
47. Id. at 588.
48. Id. at 592.
49. See, e.g., H.R. JOURNAL, 39th Cong., 1st Sess. (1865), reprinted in
BENJAMIN BURKS KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN
ON RECONSTRUCTION 103 (1914).
50. Id. (containing the proceedings of the joint House-Senate committee
that produced an initial draft of the Fourteenth Amendment).
51. WILLIAM STRUNK, JR. & E.B. WHITE, THE ELEMENTS OF STYLE 18 (Allyn
& Bacon 4th ed. 2000) (1959).
52. Abramowicz, supra note 23, at 593.
53. Id.
54. At the time of drafting, the word “should” was defined as “denoting
intention or duty.” WEBSTER, supra note 40, at 368. Thus there is a duty not to
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Lastly, the verb “question”55 would be an odd synonym for
“repudiate.”56 While repudiating a proposition means rejecting it
in its entirety, questioning merely suggests a possibility that it
be rejected. To say, “I question the debt,” is different from
saying, “the debt will not be honored.” Analogously, requiring
that a statute not question a debt’s validity is different from
requiring that it not repudiate a debt.57 The verb “question” is
more similar to the verb “undermine” than “cancel.” Following
this logic, any government action that creates uncertainty
regarding the payment of debt is unconstitutional.58
If the definition of these words changed since 1850, that
change is negligible.59 Therefore, whether the language of
Section Four is analyzed as the Thirty-Ninth Congress
understood it, or as it is currently understood, the same
conclusion is reached: The public debt encompasses more than
mere financial obligations. Additionally, there is a continuous
duty not to question the public debt or even cause uncertainty
regarding its future payments.
C. Section Five of the Fourteenth Amendment Grants
Congress the Authority to Enforce Section Four
Section Five of the Fourteenth Amendment states: “The
Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.”60 Where the Constitution is vague
or speaks in terms of broad principles, Congress is authorized to
legislate within these loosely defined boundaries.61 Additionally,
question the public debt. Similarly, “shall” is currently defined as “[h]as a duty
to; more broadly, is required to.” BLACK’S LAW DICTIONARY 1499 (9th ed. 2009).
55. When used as a verb, “question” was defined as “[t]o ask.” WEBSTER,
supra note 40, at 318. When used as a noun, its definition helps to clarify this
ambiguity: “dispute; doubt.” Id.
56. “Repudiate” was defined as “[t]o divorce; to reject; to discard; to put
away.” Id. at 336.
57. Abramowicz, supra note 23, at 592; see also id. at 592 n.156 (“[T]he
Public Debt Clause is triggered not only when the government has made it
absolutely clear through a failure to make payment that a debt will not be
honored, but also when the government’s actions effectively raise the issue.”).
58. Id. at 592.
59. See supra notes 37–56 and accompanying text.
60. U.S. CONST. amend. XIV, § 5.
61. Steven A. Engel, The McCulloch Theory of the Fourteenth Amendment:
784
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the Supreme Court can deny such congressional action only
where the law and the Constitution cannot be reconciled.62
Shortly after the insertion of the Fourteenth Amendment
into the Constitution, the Supreme Court, in its first evaluation
of Section Five, described the newly created congressional power
with these words: “Whatever legislation is appropriate, that is,
adapted to carry out the objects the amendments have in view,
whatever tends to enforce submission to the prohibitions they
contain . . . if not prohibited, is brought within the domain of
congressional power.”63 Section Five delegated to Congress the
authority of enforcing the provisions of the Fourteenth
Amendment,64 and in the view of the Supreme Court, that
authority must be either “remedial” or “substantive.”65 With
regard to rights that are recognized by courts, a remedial
authority would limit congressional power to preventing and
remedying violations of these rights.66 If not, it must be
substantive, which would give Congress the power to alter
constitutional meaning,67 but “Congress does not enforce a
constitutional right by changing what the right is.”68 Drawing
upon its own precedent and the ratification history of Section
Five, the Supreme Court adopted the remedial view of
congressional authority.69
Therefore, the Fourteenth Amendment relies on both
Congress and the courts.70 Their agreement is not a necessity
and different conclusions are not unforeseeable due to their
distinct institutional perspectives.71 Fortunately, the design of
City of Boerne v. Flores and the Original Understanding of Section 5, 109 YALE
L.J. 115, 119 (1999); see also Ex parte Virginia, 100 U.S. 339, 345–46 (1879).
62. Engel, supra note 61, at 119.
63. Ex parte Virginia, 100 U.S. at 345–46.
64. U.S. CONST. amend. XIV, § 5.
65. See Engel, supra note 61, at 122. See generally City of Boerne v.
Flores, 521 U.S. 507 (1997) (discussing whether congressional authority under
the Fourteenth Amendment is substantive or remedial).
66. Engel, supra note 61, at 122.
67. Id.
68. City of Boerne, 521 U.S. at 519.
69. See id. at 520.
70. Engel, supra note 61, at 153.
71. Id.; see David Cole, The Value of Seeing Things Differently: Boerne v.
Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV.
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the Fourteenth Amendment allowed for such disagreement, and
it would be the broadest understanding of liberty that
prevailed.72 The drafters of the Fourteenth Amendment
established the congressional authority to enforce its provisions
to protect the civil liberties of all United States citizens.73
III. THE CASE LAW SURROUNDING SECTION FOUR IS
DEFINITIVE
While a careful analysis of the historical context of this
constitutional provision is critical, it is equally important to
examine how the Supreme Court, in its only opinion on the issue,
interpreted Section Four.
A. The Only Supreme Court Decision Regarding Section Four
Yields a Broad Interpretation
Surprisingly, the only time the Supreme Court analyzed
Section Four of the Fourteenth Amendment was in Perry v.
United States.74 In 1917, bonds were issued containing a clause
stipulating that “[t]he principal and interest hereof are payable
in United States gold coin of the present standard of value.”75
The United States subsequently issued bonds “known as Fourth
Liberty Loan 4¼% Gold Bond of 1933–1938.”76 Before they
matured, the value of gold dramatically increased, and Congress
determined that payment in gold was against public policy.77
Instead, the bonds would be paid in paper dollars only.78
In 1934 John Perry took his bond to redeem it for what the
31, 59 (1997) (“[T]here are important institutional differences between judicial
and congressional enforcement (and interpretation) of the Constitution.”).
72. Engel, supra note 61, at 153.
73. Id. at 154.
74. 294 U.S. 330 (1935).
75. Id. at 346–47 (quoting Treas. Dep’t. Circular No. 121, dated Sept. 28,
1918).
76. Id. at 346 (internal quotation marks omitted).
77. See H.R.J. Res. 192, 73d Cong., 48 Stat. 112, 112–13 (1933) (“[T]he
holding of or dealing in gold affect the public interest, and are therefore subject
to proper regulation and restriction.”).
78. Id. at 113.
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face value indicated: gold dollars.79 When he purchased the
bond, a dollar in gold consisted of 25.8 grains of ninety percent
gold.80 The value of gold subsequently increased.81 By his
calculations he was owed 258,000 grains of gold, and when he
was offered only $10,00082 in legal tender, he brought suit.83 He
argued that the Joint Resolution of June 5, 193384 directly
violated Section Four of the Fourteenth Amendment.85 Even
though Perry could not prove that he sustained loss worthy of
awarding damages,86 the Supreme Court spoke strongly about
incurring debt generally.87
The Supreme Court applied Section Four to Congress’s
attempt to override its obligations to repay the bondholders’ debt
in gold as promised.88 The Supreme Court stated that Congress
is “endowed with certain powers to be exerted on behalf of the
people in the manner and with the effect the Constitution
ordains.”89 One such power is the power to borrow money on the
credit of the United States.90 While Congress has the power to
“authorize the issue of definite obligations for the payment of
money borrowed,”91 it has not been given the power to change or
renounce such obligations.92
Then, in the only analysis of Section Four, Justice Hughes,
writing for the majority, stated:
79.
80.
81.
82.
Perry, 294 U.S. at 347.
Id.
Id.
The Joint Resolution of June 5, 1933 reduced the weight of gold that
the dollar represented from 25.8 grains to fifteen and 5/21 grains. Id. at 355.
This means that the equivalent weight of gold at the time he redeemed his bond
was 152,380.9 grains. See id.
83. Id. at 346.
84. H.R.J. Res. 192, 73d Cong., 48 Stat. 112, 112 (1933).
85. Perry, 294 U.S. at 347.
86. Id. at 356–58 (denying recovery because plaintiff sought to prove loss
solely on the theory that the change in exchange rate between dollars and gold
caused him loss).
87. See id. at 351.
88. Id. at 354.
89. Id. at 353.
90. Id.
91. Id.
92. Id. at 353–54 (holding that the portion of the Joint Resolution of June
5, 1933, at question in this case, was beyond congressional authority).
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While this provision was undoubtedly inspired by the desire to
put beyond question the obligations of the Government issued
during the Civil War, its language indicates a broader
connotation. We regard it as confirmatory of a fundamental
principle, which applies as well to the government bonds in
question, and to others duly authorized by the Congress, as to
those issued before the Amendment was adopted. Nor can we
perceive any reason for not considering the expression “the
validity of the public debt” as embracing whatever concerns the
integrity of the public obligations.93
In this analysis, the Supreme Court acknowledged that the
inspiration behind this section of the Fourteenth Amendment
was silencing those who would seek to discredit the value of
government debt that was issued during the Civil War.94
However, the analysis does not stop there. The Supreme Court
also noted that the language of this section itself “indicates a
broader connotation.”95 Furthermore, the Supreme Court stated
that it viewed this section to apply to debt that was authorized by
Congress.96 As Congress has the sole ability to authorize debt, it
stands to reason that this section applies to all congressionally
authorized public debt. Last, in choosing to use the words
“whatever concerns the integrity of the public obligations,”97 the
Supreme Court seems to indicate that Section Four extends to
things that “concern” the integrity of public obligations such as
the ability to pay Social Security or Medicare.
B. The Lower Courts Cannot Agree on a Consistent
Interpretation of Section Four
Although there is only one Supreme Court opinion discussing
Section Four of the Fourteenth Amendment, several lower courts
have offered their own interpretations. Unfortunately, these
interpretations are inconsistent.
These court opinions range from Section Four being
93.
94.
95.
96.
97.
788
Id. at 354.
Id.
Id.
Id.
Id.
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applicable only to debts that were created during the Civil War98
to leaving room for the interpretation that Section Four still
applies.99 The District Court for the Southern District of Ohio
went so far as to apply this section to the government’s
repudiation of its contractual obligations,100 but the Sixth Circuit
reversed this decision.101 The Fourth Circuit sidestepped the
issue of interpretation completely and declined to address the
section’s application.102 Finally, some courts declined to apply
Section Four to their cases because there had been no
“questioning” of public debt.103 Even though the Supreme Court
has not addressed this issue since Perry, several recent appellate
court decisions show that Section Four is applicable to more than
just Civil War debts.
In these recent cases—which arose from the amendment of
the Higher Education Act104—the Sixth and Seventh Circuits
98. Delaware v. Cavazos, 723 F. Supp. 234, 245 (D. Del. 1989) (“[Section
Four] is specifically directed to bond debts created during the Civil War.”), aff’d,
919 F.2d 137 (3d Cir. 1990); Colorado v. Cavazos, Civ A. No. 88-C-2073, 1990
WL 367621, at *5 (D. Colo. Aug. 21, 1990) (following the reasoning of the
district court in Delaware).
99. Great Lakes Higher Educ. Corp. v. Cavazos, 911 F.2d 10, 17 (7th Cir.
1990) (“This section is only brought into play when some state or federal
government agency questions a debt.”); Ohio Student Loan Comm’n v. Cavazos,
900 F.2d 894, 902 (6th Cir. 1990) (“[B]ecause we find no abrogation of the
‘contract’ in the instant case, we conclude that there was no violation of section
four of the Fourteenth Amendment.”).
100. Ohio Student Loan Comm’n v. Cavazos, 709 F. Supp. 1411, 1420 (S.D.
Ohio 1988) (following Perry by holding that the government’s retaking of funds
that it had paid due to contractual obligations was an unconstitutional
questioning of the public debt), rev’d, 900 F.2d 894 (6th Cir. 1990).
101. Ohio Student Loan Comm’n, 900 F.2d at 902 (holding that the
Secretary did not abrogate any contractual rights but merely altered the
existing contract).
102. S.C. State Educ. Assistance Auth. v. Cavazos, 716 F. Supp. 886, 895
n.9 (D.S.C. 1989) (holding that because the 1987 amendments violated the Fifth
Amendment, the court did not need to address the claim that the amendments
violated Section Four of the Fourteenth Amendment), aff’d in part, rev’d in part,
897 F.2d 1272 (4th Cir. 1990).
103. Great Lakes, 911 F.2d at 18 (holding that there was no questioning of
valid debt); Ohio Student Loan Comm’n, 900 F.2d at 902 (holding that the
contract was not abrogated and thus no questioning occurred); Delaware, 723 F.
Supp. at 245 (holding that due to the lack of property interest in the cash or
contractual rights, there was no questioning of public debt).
104. Congress passed this amendment in 1987, which provided guidelines
for determining and recovering the amount of excess funds contained in the
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correctly followed the holding of Perry in applying Section
Four.105 In reversing, the Sixth Circuit found Section Four did
not apply because the lower court had incorrectly held the
contract in question to be abrogated.106 Since there was no
abrogation, the appellate court correctly applied Perry and found
there was no questioning of public debt.107 Similarly, the
Seventh Circuit found Section Four did not apply.108 These
applications of Perry show that the Supreme Court’s interpretation of Section Four is still applicable today.
C. Section Four Applies to the National Debt, but Can the
President Use This to Fix the Problem?
Even though Section Four has been applied, there is still a
question concerning its enforcement: Does Article II give the
President the power to enforce Section Four of the Fourteenth
Amendment in order to declare the debt ceiling unconstitutional?
This Note proposes the answer is no.
While it is true that Section Four was intended to be broadly
applied, there seems to be a disconnect between how the Framers
of the Constitution intended to apply this section and how it is
actually applied.109 Some argue that the President has the
authority to enforce this provision,110 but others point to the
power of the purse, which grants specific authority to
Congress.111 In addition, Section Five of the Fourteenth
reserves of various agencies. See Omnibus Budget Reconciliation Act of 1987,
20 U.S.C. § 1072(e) (1998).
105. See Great Lakes, 911 F.2d at 17–18; Ohio Student Loan Comm’n, 900
F.2d at 902.
106. Ohio Student Loan Comm’n, 900 F.2d at 902.
107. Id.
108. Great Lakes, 911 F.2d at 17–18.
109. Most agree that the power is vested in either the President or in
Congress. See Erwin Chemerinsky, Op-Ed., The Constitution, Obama and
Raising the Debt Ceiling, L.A. TIMES (July 29, 2011, 11:41 AM), http://opinion.
latimes.com/opinionla/2011/07/erwin-chemerinsky-on-why-obama-cant-raisethe-debt-ceiling.html; Tribe, supra note 7. However, it is interesting that if
neither applies, the Tenth Amendment reserves the power to the States. See
U.S. CONST. amend. X.
110. See Tribe, supra note 7; U.S. CONST. art. II, § 3 (“[The President] . . .
shall take Care that the Laws be faithfully executed . . . .”).
111. See Chemerinsky, supra note 109; U.S. CONST. art. I, § 8 (“The
790
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Amendment states: “The Congress shall have power to enforce,
by appropriate legislation, the provisions of this Article.”112 The
intent seems clear, but the Supreme Court discussed presidential
power in depth in Youngstown Sheet & Tube Co. v. Sawyer.113
In 1951, there was a labor conflict between the steel
companies and their employees.114 When negotiations failed to
reach a settlement, President Truman issued Executive Order
10340 mere hours before a strike was to begin.115 It instructed
the Secretary of Commerce to take control of the steel mills to
ensure that they continued running.116 The President sent two
messages to Congress alerting them of his action, but Congress
responded to neither.117 After he followed the President’s
instructions, the steel companies filed suit against the Secretary
and petitioned the district court to declare the President’s orders
invalid.118
One particular issue discussed in Youngstown is also
pertinent to the examination of the debt ceiling question: Does
the Constitution grant the President the power to issue such an
executive order?119 The Supreme Court held that “[t]he
President’s power, if any . . . must stem either from an act of
Congress or from the Constitution itself.”120 The President’s
action was not based upon power granted from congressional
action or constitutional provision, and while there were two
statutes that would have granted such authority, neither statute
was satisfied.121
In his concurrence, Justice Jackson discussed the three zones
of executive authority.122 The first is “[w]hen the President acts
Congress shall have Power To lay and collect Taxes . . . to pay the Debts . . .
[and] To borrow money on the credit of the United States . . . .”).
112. U.S. CONST. amend. XIV, § 5.
113. 343 U.S. 579 (1952).
114. Id. at 582.
115. Id. at 583.
116. President Truman issued this Order to prevent a lapse in steel
production, believing that any lapse would jeopardize the national defense. Id.
117. Id.
118. Id.
119. Id. at 584.
120. Id. at 585.
121. Id. at 585–86.
122. Id. at 635–38 (Jackson, J., concurring).
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pursuant to an express or implied authorization of Congress.”123
Within this zone, “his authority is at its maximum.”124 The
second zone of authority is “[w]hen the President acts in absence
of either a congressional grant or denial of authority.”125 Here,
the President can rely only on his own authority.126 This is
known as the “zone of twilight,” in which Congress could have
concurrent authority or the distribution of power is unknown.127
The third zone is seen when the President acts against “the
expressed or implied will of Congress.”128 The President’s power
here “is at its lowest ebb.”129
Today, not only is the President in this third zone, where
Congress acted in establishing the debt ceiling, it is an area
where the Constitution expressly granted the authority to
Congress.130 Because the President must rely solely upon the
power granted to him in the Constitution less any power that is
granted to Congress, he cannot utilize Section Four to declare the
debt ceiling unconstitutional.
IV. THE PRESIDENT IS NOT ENTITLED TO USE
SECTION FOUR
On May 16, 2011, the United States reached its debt limit of
$14.3 trillion.131 At that point, Congress had until August 2 to
vote to raise that limit or face potential default.132 Republican
and Democratic leaders in Congress, as well as the President,
agreed that something needed to be done, but the divide between
123.
124.
125.
126.
127.
128.
129.
130.
Id. at 635.
Id.
Id. at 637.
Id.
Id.
Id.
Id.
See U.S. CONST. art. I, § 8 (“The Congress shall have Power To lay and
collect Taxes . . . to pay the Debts . . . [and] To borrow money on the credit of the
United States . . . .”).
131. Tribe, supra note 7. Interestingly, the Thirty-Ninth Congress was
concerned enough to amend the Constitution when the public debt reached a
mere $2.76 billion. SAVAGE, supra note 22, at 288.
132. Tribe, supra note 7. This default could be as minor as not paying a
single payment when it comes due.
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the aisles was too wide to agree on how to curb this rapid debt
growth.133 What ensued was a “high-stakes game of fiscal
chicken,”134 and between May 16 and August 2, more articles
were published regarding Section Four than had been published
in its history.135 To stall this inevitable deadline, Congress
created the Joint Select Committee on Deficit Reduction, or what
became known as the “Supercommittee.”136 Its task was to
formulate recommendations for reducing the federal deficit by
$1.5 trillion.137 With a threat of sequestration, the committee
members were given until November 23, 2011 to vote on a report
of their findings, conclusions, and recommendations.138 As the
Supercommittee failed to reach an agreement139 and Congress
has not passed any legislation, Section Four may again be
considered as a solution to this debt ceiling issue.140
133. Id.
134. Abramowicz, supra note 23, at 563.
135. See, e.g., Abrams, supra note 38; Chemerinsky, supra note 109; Tribe,
supra note 7.
136. Budget Control Act of 2011, Pub. L. No. 112-25, § 401, 125 Stat. 240,
259 (2011) (creating the Joint Select Committee—or Supercommittee—on
August 2, 2011). The Supercommittee was comprised of six members of the
House of Representatives and six members of the Senate. Of these members,
three from each house were Republicans and three were Democrats. Id. §
401(b)(4), 125 Stat. at 260–61.
137. Id. § 401(b)(2), 125 Stat. at 259.
138. Id. § 401(b)(3)(B)(i), 125 Stat. at 260. Unless a bill reducing the deficit
by at least $1.2 trillion is passed before January 15, 2012, section 302(a)
triggers automatic budget cuts across the board. Id. § 302(a), 125 Stat. at 256–
59 (adding section 251A to The Balanced Budget and Emergency Deficit Control
Act of 1985 (to be codified at 2 U.S.C. § 901(a)).
139. Press Release, Rep. Jeb Hensarling & Sen. Patty Murray, Joint Select
Comm. on Deficit Reduction, Statement from Co-Chairs of the Joint Select
Comm. on Deficit Reduction (Nov. 21, 2011), available at http://murray.
senate.gov/public/index.cfm/2011/11/statement-from-co-chairs-of-the-joint-select
-committee-on-deficit-reduction (“After months of hard work and intense
deliberations, we have come to the conclusion today that it will not be possible
to make any bipartisan agreement available to the public before the
committee’s deadline.”).
140. On January 12, 2012, President Obama formally requested that the
debt ceiling be raised by an additional $1.2 trillion. Peter Schroeder, President
Obama Requests $1.2 Trillion Debt Hike over GOP Objections, ON THE MONEY
(Jan. 12, 2012, 5:37 PM), http://thehill.com/blogs/on-the-money/budget/
203899-white-house-requests-debt-limit-increase. On January 18, 2012, House
Republicans voted to deny this request. See Michael McAuliff, Debt Limit Hike
Fails in Symbolic House Vote, HUFFINGTON POST (Jan. 18, 2012), http://www.
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Several legal scholars, members of Congress,141 and even a
former President142 suggested that President Obama invoke the
Fourteenth Amendment to increase the debt ceiling.143 These
theories would allow the President to uphold Section Four to pay
all debts when they come due,144 unilaterally raise the debt
ceiling by deeming this an “emergency situation,”145 declare the
ceiling itself unconstitutional,146 or violate the statutory debt
ceiling to prevent default.147 Some even suggest that he may do
anything necessary to avoid default.148 Section Four is
characterized as a “fail safe”149 or the “least bad option”150 by
members of Congress and would come into play should the debt
limit increase fail. Those opposed to this idea state that Section
Four is not an option for one main reason: the United States
Constitution gives this power to Congress and not to the
huffingtonpost.com/2012/01/18/debt-limit-hike-debt-ceilingcongress_n_1214510.html. The Senate, however, approved the President’s
request after opposition leaders failed to amass the two-thirds majority
required to block this increase. See Michael McAuliff, Debt Limit: Senate Votes
for Hike, HUFFINGTON POST (Jan. 26, 2012, 12:55 PM), http://www.huffington
post.com/2012/01/26/debt-limit-senatehike_n_1234120.html.
141. Tribe, supra note 7.
142. Joe Conason, Exclusive Bill Clinton Interview: I Would Use
Constitutional Option to Raise Debt Ceiling and “Force the Courts to Stop Me,”
NAT’L MEMO (July 19, 2011), http://www.nationalmemo.com/article/exclusiveformer-president-bill-clinton-says-he-would-use-constitutional-option-raisedebt.
143. Lillis, supra note 8.
144. H.R. Con. Res. 69, 112th Cong. (2011).
145. Amy Bingham, The 14th Amendment: A Debt Ceiling Back-Up Plan?,
ABC NEWS (July 20, 2011), http://abcnews.go.com/blogs/politics/2011/07/14thamendment-a-debt-ceiling-back-up-plan [hereinafter Back-Up Plan]; Cohn,
supra note 8; David Jackson, Obama Could Cite 14th Amendment Powers to
Tackle Debt Limit, USA TODAY (July 29, 2011, 5:07 AM) http://www.usatoday
.com/ news/washington/2011-07-28-Obama-debt-limit-14th-amendment-constitu
tion_n.htm [hereinafter Debt Limit]; Lillis, supra note 8; see infra Part IV.B.
146. Tribe, supra note 7.
147. Id.
148. Abrams, supra note 38.
149. Last-Ditch, supra note 38 (House Democratic Caucus Chairman John
Larson, D-Conn.: “We believe that fail-safe mechanism is the [Fourteenth]
Amendment and the [P]resident of the United States.”); Lillis, supra note 8
(characterizing Fourteenth Amendment option as “fail-safe”).
150. Plumer & Blake, supra note 8 (quoting House Minority Whip Steny H.
Hoyer).
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President.151
A. House Concurrent Resolution Sixty-Nine Fails to Account
for Congressional Authority Established in Section Five of the
Fourteenth Amendment
On August 1, 2011, Representative Jerrold Nadler of New
York introduced House Concurrent Resolution Sixty-Nine, and it
was subsequently referred to the House Ways and Means
Committee.152 However, there is no indication of when the
committee will issue a report. The resolution states:
Expressing the sense of Congress that the President should
ensure that the United States does not default on its debt by
making every effort to negotiate passage of an increase in the
statutory debt ceiling or, all such efforts failing, should use his
authority under section 3 of article II of the United States
Constitution to uphold section four of the 14th Amendment to
the United States Constitution to pay all debts of the United
States as they come due.153
It seems that Mr. Nadler is saying that the President already
has authority to invoke Section Four under Section Three of
Article II. However, if this is the case, why does it need to be
passed in a resolution? There is no current authority for the
President to do so. Under Section Three, the President “shall
take Care that the Laws be faithfully executed.”154 While he has
the responsibility to ensure that the laws are faithfully executed,
it seems that in the haste to show that Section Four of the
Fourteenth Amendment is the law and that the President should
ensure that it is upheld, many overlooked or dismissed Section
Five of the Fourteenth Amendment. It clearly states, “The
Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.”155 The Thirty-Ninth Congress
151. Back-Up Plan, supra note 145 (Rep. Tim Scott, South Carolina);
Chemerinsky, supra note 109; Plumer & Blake, supra note 8 (White House
Press Secretary Jay Carney); Tribe, supra note 7 (Laurence Tribe).
152. H.R. Con. Res. 69, 112th Cong. (2011); see GOVTRACK.US, http://www.
govtrack.us/congress/bill.xpd?bill=hc112-69 (last visited Feb. 17, 2012).
153. H.R. Con. Res. 69.
154. U.S. CONST. art. II, § 3.
155. U.S. CONST. amend. XIV, § 5.
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added this section and specifically gave the authority to enforce
the provisions of the Fourteenth Amendment to itself—not to the
President.
B. The “Debt Crisis” Is Not an Emergency Situation
There are differing views on whether this debt ceiling issue
Some members of
constitutes an emergency situation.156
Congress argue that it is no different from past emergency
situations where the President could take unilateral action.157
Others, including several constitutional scholars, disagree with
this proposition and offer a more compelling argument against
allowing the President to wield such authority.158
Representative James Clyburn of South Carolina, the thirdranking House Democrat, said the President should use the
Fourteenth Amendment to unilaterally hike the debt ceiling.159
In speaking to reporters, Representative Clyburn said that the
President “should sign an executive order invoking the
[Fourteenth] Amendment.”160 He compared the current
congressional standoff with other emergency situations.161 Eric
Posner, a law professor at the University of Chicago, agreed,
saying that during crises the President has the power to take
necessary action to protect the country.162 This would not be the
first time that a President had to take unilateral action in an
emergency situation, and several scholars and politicians have
noted the similarities.163 Representative Xavier Becerra even
156. Cohn, supra note 8, at 1.
157. Id. at 2 (“[T]he American people would stand up and applaud a
president who had the guts and the courage to stand up and make sure the
political battles don’t tear this country apart.”).
158. See, e.g., Chemerinsky, supra note 109; Tribe, supra note 7.
159. Lillis, supra note 8, at 1 (quoting Rep. James Clyburn).
160. Id.
161. Id.
162. Eric A. Posner & Adrian Vermeule, Op-Ed., Obama Should Raise the
Debt Ceiling on His Own, N.Y. TIMES, July 22, 2011, http://www.
nytimes.com/2011/07/22/opinion/22posner.html.
163. Cohn, supra note 8 (comparing the idea to President Lincoln and the
Emancipation Proclamation, or President Franklin Roosevelt’s Lend-Lease
program); Debt Limit, supra note 145 (ordering a government seizure of the
steel mills because a strike created risks for U.S. troops then fighting in Korea);
Posner & Vermeule, supra note 162 (“[T]he president would derive authority
796
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Public Debt Clause Debate
went as far as to say that the President has the authority to do
“whatever it takes” to prevent a default.164
However, prominent scholars, Laurence Tribe165 and Erwin
Chemerinsky, disagree with this argument.166 “If the president
could usurp the congressional power to borrow, what would stop
him from taking over all these other powers, as well?”167 The
whole purpose for this action would be to restore the confidence
that the creditors have in the United States, but without the
backing of Congress, it is hard to know exactly what the resulting
impact would be.168 It would be “a fundamental departure from
all of our historic traditions” for the President to continue to
borrow without the backing of Congress and is something that
should be avoided.169 Even though past Presidents have exceeded
their constitutional authority,170 the controversy over the debt
ceiling is not such an emergency.171 In addition, Section Eight of
Article I, more commonly known as the power of the purse, is a
from his paramount duty to ward off serious threats to the constitutional and
economic system.”).
164. Abrams, supra note 38 (“Mr. President, Republicans through their
failure have given you license to do whatever it takes to not let the American
family go down into that abyss with House Republicans.”).
165. Laurence Tribe was one of President Obama’s professors in law school.
Back-Up Plan, supra note 145, at 2.
166. Chemerinsky, supra note 109 (“[T]here is no reasonable way to
interpret the Constitution that allows the president to do this on his own.”);
Tribe, supra note 7 (“[T]he arguments for ignoring the debt ceiling are
unpersuasive.”).
167. Tribe, supra note 7, at 2.
168. Back-Up Plan, supra note 145, at 3.
169. Id.
170. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) (Jackson, J., concurring) (discussing different theories of Presidential
authority). For example, when Lincoln signed the Emancipation Proclamation,
the Constitution considered slaves three-fifths of a person. U.S. CONST. art. I, §
2, cl. 3.
171. Back-Up Plan, supra note 145, at 3 (“When Lincoln unconstitutionally
suspended the right of habeas corpus during the Civil War, he did so to prevent
. . . the country from breaking apart. But the latest situation . . . is not ‘such an
existential crisis’ that the president would have to ‘sacrifice the whole union in
order to obey the Constitution.’”); Chemerinsky, supra note 109 (“Not even a
dire financial emergency would allow the president to take this over. The
Constitution, thankfully, has no provision allowing for its suspension even in
times of crisis.”).
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power the Constitution gives to Congress, not the President.172
C. Drawing a Line in the Sand Is a Slippery Slope
There are some who argue that Section Four prohibits any
government action that would jeopardize the validity of the
public debt.173 The argument is that increasing the risk of
default through the mere existence of a debt ceiling would be a
violation of this section.174 However, by this argument, the
absence of a ceiling would be unconstitutional. Without a ceiling,
the nation’s debt would be limitless. Because there is a direct
correlation between the size of the public debt and the difficulty
in repaying it,175 having no ceiling would also jeopardize the
debt’s validity.
Others offer a different interpretation of this section. For
example, constitutional scholar, Neil Buchanan, argued: “The
14th Amendment is there to say the U.S. government is
committed to always making sure that its obligations are
honored.”176 This interprets Section Four as only prohibiting
actual default.177 Under this interpretation, after the deadline,
the President would be faced with contradicting laws.178 Jack
Balkin, another constitutional scholar, noted that the President
172. U.S. CONST. art. I, § 8, cl. 1.
173. Tribe, supra note 7, at 1.
174. Id. at 2 (“[This argument] would mean that any budget deficit, tax cut
or spending increase could be attacked on constitutional grounds, because each
of those actions slightly increases the probability of default.”).
175. Id. (“[T]he argument is self-defeating. If it were correct, the absence of
a debt ceiling could likewise be attacked as unconstitutional—after all, the
greater the nation’s debt, the greater the difficulty of repaying it, and the
higher the probability of default.”).
176. Back-Up Plan, supra note 145 (“[D]efaulting on America’s debt violates
this part of the Constitution because it would undermine the trustworthiness of
the country’s debt.” (internal citation omitted)).
177. Id.
178. Plumer & Blake, supra note 8 (“On the one hand, the government is
required to pay out money that has already been appropriated. On the other, it
would not be allowed to float new debt to cover its obligations.”). This argument
misses the point. While the Fourteenth Amendment might require avoiding
default, and the debt ceiling statute prohibits additional borrowing, the
President does not have to choose between the two. There are certainly other
avenues that the President can pursue.
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“has a constitutional duty to treat at least one of the laws as
unconstitutional as applied to the current circumstances.”179
Considering this interpretation of Section Four, along with the
duty of the President, the debt ceiling would have to be
disregarded.180 This argument disregards Article III, which gives
judicial authority to the Court.181 This authority is more clearly
established in Marbury v. Madison, where the Supreme Court
stated: “The judicial power of the United States is extended to all
cases arising under the constitution.”182 The President does not
have such authority, and because the Supreme Court has not
deemed the law unconstitutional, he cannot make this
decision.183
D. Impeachment Is the Last Stand
Some have stated it would be an impeachable offense if the
President declared the debt ceiling unconstitutional.184 While
others say that impeachment is not likely to happen.185 Still
others say that even if impeached, the Senate would likely rule in
the President’s favor.186 Gerald Ford eloquently defined an
impeachable offense as “whatever a majority of the House of
Representatives considers [one] to be.”187 The Constitution gives
the authority to begin the impeachment process to the House of
179.
180.
181.
182.
183.
184.
Id.
Id.
U.S. CONST. art. III, § 2.
5 U.S. (1 Cranch) 137, 178 (1803).
Chemerinsky, supra note 109; Tribe, supra note 7.
Back-Up Plan, supra note 145 (“Rep. Tim Scott, R-S.C., said it would
be ‘an impeachable offense’ for Obama to ‘usurp congressional oversight’ and
raise the limit on his own. Sen. Ron Johnson, R-Wis., said Congress would ‘take
him to court’ and Sen. John Cornyn, R-Texas, said it was ‘crazy talk.’”).
185. Laurence H. Tribe said that this was “not politically a very plausible
scenario.” Adam Liptak, The 14th Amendment, the Debt Ceiling and a Way Out,
N.Y. TIMES, July 24, 2011, http://www. nytimes.com /2011/07/25/us/politics
/25legal.html.
186. Id. (“Professor Levinson was less certain. Impeachment by the House of
Representatives ‘seems to me quite likely.’ But, he added, ‘it is also literally
unimaginable that the Senate would convict.’”); Cohn, supra note 8 (“‘I think he
wins’ in a court challenge, [Senator] Harkin said.”).
187. 116 CONG. REC. 11,913 (1970) (statement of Rep. Gerald Ford).
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Representatives.188 With the majority of the House being
Republican189 and opposed to the President’s use of Section Four,
an impeachment would likely follow. However, even if the House
were to impeach the President, the next step would be for the
Senate to try the case,190 and it is highly unlikely that this would
happen with the current Democratic majority in the Senate.191
E. The Authority to Act Is Vested in Congress
Many have offered explanations of who has the authority to
raise the debt ceiling, including former President Bill Clinton,
who said that he would unilaterally invoke Section Four “without
hesitation” to raise the debt ceiling “and force the courts to stop
[him].”192 However, President Obama rejected this idea stating:
“There is a provision in our Constitution that speaks to making
sure that the United States meets its obligations, and there have
been some suggestions that a president could use that language
to basically ignore that debt-ceiling rule, which is a statutory
rule.”193 In acknowledging that this section is statutory, he
acknowledged that it is not within his authority to change.194 He
went on to say that he and his attorneys were “not persuaded
that that is a winning argument.”195 This use of the words
188. U.S. CONST. art. I, § 2, cl. 5.
189. The House of Representatives of the 112th Congress consists of 435
members: 242 Republicans, 192 Democrats, and one vacant seat. Congressional
Profile, OFFICE OF THE CLERK OF THE U.S. HOUSE OF REPRESENTATIVES,
http://clerk.house.gov/member_info/cong.aspx (last visited Feb. 20, 2012).
190. U.S. CONST. art. I, § 3, cl. 6.
191. The Senate of the 112th Congress consists of 100 members: 51
Democrats, 47 Republicans, and 2 Independents. Congressional Profile,
OFFICE OF THE CLERK OF THE U.S. HOUSE OF REPRESENTATIVES, http://clerk.
house.gov/member_info/cong.aspx (last visited Feb. 20, 2012). While
partisanship does not alone dictate how the votes will fall, it is certainly a good
indication of the general mood of the respective parties. The majority of
members will vote with their party’s leader, while those on the conservative and
liberal extremities of each party are more unpredictable. In addition, there are
always outside political factors involved in voting. Therefore, to avoid an indepth and lengthy discussion of how and why members of Congress vote, I
assume for purposes of this Article that all members vote with their party.
192. Liptak, supra note 185.
193. Lillis, supra note 8.
194. Id.
195. Id.
800
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“winning argument,” combined with the fact that President
Obama is an attorney,196 indicates his interpretation that
unilateral action on his part would inevitably lead to the
Supreme Court. Unilateral action goes against his statement
that a core function of the Constitution is to “force us into a
conversation” about our future.197 There needs to be a dialogue
between Congress and the President as opposed to unilateral
action.
White House Press Secretary Jay Carney made it clear that
using Section Four is not an option because the authority to
borrow money was clearly vested in Congress.198 He continued,
stating: “Having an esoteric constitutional argument won’t
resolve the fact that our borrowing authority is due to expire.”199
Many others share this opinion,200 including Erwin
Chemerinsky, who stated: “[T]here is no plausible way to read
this provision as providing the president the ability to increase
the debt ceiling without congressional action.”201 It is Congress
that has power “[t]o borrow money on the credit of the United
States.”202 Looking to Section Four of the Fourteenth
Amendment, there is nothing to indicate that power is taken
196. Not only is President Obama an alumni at Harvard Law School, but he
also taught constitutional law at the University of Chicago. President Barack
Obama, THE WHITE HOUSE, http://www.whitehouse.gov/administration/
president-obama (last visited Feb. 17, 2012).
197. BARACK OBAMA, THE AUDACITY OF HOPE: THOUGHTS ON RECLAIMING THE
AMERICAN DREAM 92 (2006).
198. Cohn, supra note 8 (“The Constitution makes clear that Congress has
the authority—not the president—to borrow money, . . . [a]nd only Congress can
increase the statutory debt ceiling. That’s just a reality.”); see also David
Jackson, Obama Says He Won’t Raise Debt Ceiling on His Own, THE OVAL (July
28, 2011, 3:58 PM), http://content.usatoday. com/communities/theoval/post
/2011/07/obama-says-he-wont-raise-debt-ceiling-on-his-own/ [hereinafter His
Own] (“And only Congress has the legal authority to extend that borrowing
authority. That’s our position.”).
199. His Own, supra note 198.
200. See Back-Up Plan, supra note 145 (“The Constitution explicitly places
the borrowing authority with Congress, not the president.”); Tribe, supra note 7.
201. Chemerinsky, supra note 109.
202. U.S. CONST. art. I, § 8, cl. 2. Simply put, congressional action is
required to borrow money; there can be no other interpretation. Chemerinsky,
supra note 109.
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away from Congress or that such power is given to the
President.203 Section Five clears up this lack of specificity by
explicitly stating that Congress has the power.204
If the language of the Constitution is insufficient, we can look
to history for guidance. Justice Jackson said that the President’s
power drops to its “lowest ebb” when exercised against the
expressed will of Congress.205 In addition, long, unbroken
tradition is weighted heavily when interpreting the Constitution,
and the debt ceiling has always been set by statute.206
V. CONCLUSION
The Thirty-Ninth Congress intended Section Four of the
Fourteenth Amendment to apply to a much broader scope of debt
than that merely incurred during the Civil War.207 It intended to
create a constitutional canon to protect and maintain the
national honor for all time. While Section Four has a broad scope
of applicability to our nation’s debt, Section Five has given the
authority to Congress to enforce it through appropriate
legislation.208
In its interpretation in Youngstown, the Supreme Court
noted that Congress is given certain powers to exercise for the
people and in the manner that the Constitution allows.209 In
203. U.S. CONST. amend. XIV, § 4; see Chemerinsky, supra note 109
(dismissing Section Four as a mechanism for the president to act unilaterally to
raise the debt ceiling).
204. U.S. CONST. amend. XIV, § 5 (“The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article.”); see LastDitch, supra note 38 (“It’s a tempting [argument], but I think it’s fundamentally
fallacious because it assumes that the executive branch is the branch of
government that has the ability to enforce the [Fourteenth] Amendment.
Section [Five] makes clear it is Congress that has that power.”).
205. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952)
(Jackson, J., concurring) (“Courts can sustain exclusive presidential control in
such a case only by disabling the Congress from acting upon the subject.”);
Tribe, supra note 7.
206. See Chemerinsky, supra note 109 (“As the court often has said, ‘History
has placed a gloss on the Constitution.’”).
207. See Abramowicz, supra note 23, at 587–88.
208. U.S. CONST. amend. XIV, § 5.
209. See Perry v. United States, 294 U.S. 330, 353 (1935) (“The Constitution
gives to the Congress the power to borrow money on the credit of the United
States, an unqualified power, a power vital to the Government . . . .”).
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following this interpretation of Section Four, the Sixth and
Seventh Circuits indicate that this section is still applicable
today.210 Regardless of whether Section Four is applicable to the
current situation, Congress acted in this zone of constitutionally
granted authority by statutorily creating a debt ceiling.211
Therefore, the President’s authority would be at its “lowest
ebb.”212 The Supreme Court would allow Presidential action to
the contrary only if Congress had exceeded this authority—which
it has not.
Currently, as the Supercommittee has failed to reach an
agreement and Congress has not passed any legislation to resolve
this problem, there is a high likelihood that Section Four may
again be brought up as a solution.
Additionally, House
Concurrent Resolution Sixty-Nine is currently in the House
Committee for Ways and Means for review.213 The Resolution
would essentially allow the President to ignore the debt ceiling
and pay all debts as they come due, but it seems to overlook
Section Five, which allocates that power to Congress.214 There
are those who would call this an emergency and give unbridled
authority to the President; there are those who would allow the
President to declare the debt ceiling unconstitutional; and there
are those who know the truth: The United States Constitution
does not grant the President the authority to do any of these
things. If the language of the Constitution is insufficient, we look
to history for guidance. Justice Jackson indicated that the
“lowest ebb” of Presidential authority exists where the
constitutional authority is clearly granted to and exercised by
210. See, e.g., Great Lakes Higher Educ. Corp. v. Cavazos, 911 F.2d 10, 17–
18 (7th Cir. 1990) (reaffirming the vitality of the Public Debt Clause by holding
that Congress did not question a public debt by imposing a new condition on the
fulfillment of the Secretary’s obligations); Ohio Student Loan Comm’n v.
Cavazos, 900 F.2d 894, 902 (6th Cir. 1990) (finding no abrogation of the
“contract,” and therefore no questioning of the public debt).
211. Public Debt Limit Increase, Pub. L. No. 111-139, 124 Stat. 8 (2010).
212. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952)
(Jackson, J., concurring).
213. GOVTRACK.US, http://www.govtrack.us/congress/bill. xpd?bill=hc112-69
(last visited Feb. 17, 2012).
214. H.R. Con. Res. 69, 112th Cong. (2011); see also U.S. CONST. amend.
XIV, § 5.
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Congress.215 Finally, the Supreme Court will weigh heavily the
long, unbroken tradition of raising the debt ceiling by statute
when considering the constitutionality of presidential action on
the debt ceiling.
While it seems that Section Four and the debt ceiling conflict,
they are both intended to act as protection for those who hold
United States debt. This situation is essentially a catch-22 for
the President: he can pay the obligations and breach the debt
ceiling, or he must choose among defaulting, firing federal
employees, or ceasing to provide a government service. Either
way, he will violate or fail to execute several federal statutes, and
it is not clear whether the President has the authority to
prioritize payments. Ultimately, the President must allow
members of Congress to do what the Constitution grants them
the authority and responsibility to do. This is their responsibility
to the citizens of the United States, and they must be given the
deference to act without interference.
In order to solve this problem, Congress must adopt a
balanced budget. There are many ways that this can be
accomplished, but two views are more prevalent. Both would
match the budget to income, but that is where the similarities
end. One reduces spending, while the other eliminates tax
deductions and preferential tax rates of capital gains to increase
income. While both are viable, the two views are diametrically
opposed. Therein lies the true problem. Both houses of Congress
and the President are needed to pass a bill, and the divide
between the political parties is increasing. While the President
cannot unilaterally make a decision, there are avenues that he
can pursue to close this divide and ensure that Congress does not
fail to act in time.
First, he must propose a bipartisan solution that ultimately
creates a balanced budget. By proposing a bipartisan solution,
he will gain the support of enough members of Congress to pass
the bill. This solution must include “entitlement reform” in order
to reduce the number of fraudulent claims for Medicaid and
Social Security. There must be a reduction in unnecessary
spending, but it is unwise to reduce military funding because the
215. Youngstown, 343 U.S. at 637.
804
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Public Debt Clause Debate
media alerts enemies of the United States—an alert that cannot
yield beneficial results. Lastly, it needs to include a revision in
the tax code to fairly tax all Americans regardless of their
economic status. Accomplishing these simultaneously will
prevent an uneven distribution of the burden on Americans and
spread the sacrifice evenly.
If this plan is unsuccessful, it may be necessary to break it up
into several smaller bills. Each member of Congress represents a
different portion of the population, and the needs of one group
are not necessarily the needs of another. Many will object, but
their objections will be for different reasons. The best way to get
over this hurdle is to propose one or two items at a time. While
this would be a lengthy process, those who oppose a single item
will likely support the rest.
Should these options fail, the President must call his fellow
members of the Democratic Party to yield some ground to
Republican ideals. As the leader of this great nation, he must be
the first one to set aside party differences in order to reach a
compromise on how to stop the continual increase of national
debt. Finally, if he cannot get Congress to come to an agreement,
he must do everything he can by Executive Order.
The battle of politics within our government rages on and it
is likely that we have not heard the last of the debt ceiling
debate. Congress cannot act, or fail to act, as illustrated by this
Note, simply because it is an election year and approval ratings
might be affected. A bipartisan solution is needed, and it will
require sacrifices from everyone—not just the rich or the poor—
to ensure that future generations of Americans will not bear the
burden of the debt.
805
A CONSTITUTIONAL RINGTONE: CELL
PHONES AND THE SEARCH INCIDENT TO
LAWFUL ARREST WARRANT EXCEPTION
POST GANT
Cassie M. Weathersbee*
I.
II.
INTRODUCTION .............................................................. 807
THE FOUNDATION FOR THE SILA WARRANT
EXCEPTION ..................................................................... 811
III. SILA EXCEPTION AND CONTAINERS ......................... 811
IV. SILA EXCEPTION AND AUTOMOBILES ...................... 813
V.
SILA EXCEPTION AND CELL PHONES ....................... 814
VI. ARIZONA V. GANT: THE SUPREME COURT’S
RETURN TO CHIMEL ..................................................... 816
VII. APPLYING THE SILA EXCEPTION JUSTIFICATIONS TO CELL PHONES ................................... 818
VIII. LOWER COURT DECISIONS STRIKING DOWN
WARRANTLESS SEARCHES OF CELL PHONES......... 820
IX. POST-GANT DECISIONS UPHOLDING
WARRANTLESS SEARCHES OF CELL PHONES
PURSUANT TO THE SILA EXCEPTION ....................... 825
X.
THE CAUTIONARY TALE FROM GANT ....................... 829
XI. THE NEED FOR A NEW PERSPECTIVE TO
ENCOMPASS EVOLVING TECHNOLOGY .................... 830
XII. CONCLUSION .................................................................. 837
I. INTRODUCTION
If you are among the over 300 million cell phone users in
America today,1 you know all too well the vast amount of data
* J.D. Candidate, Charleston School of Law, Expected 2013. I would like to
thank Professor Miller Shealy for his comments and guidance in helping me
arrive at a timely and interesting topic. Additional thanks to David Miller for
his unwavering encouragement and eagerness to help. Special thanks to the
members of the Charleston Law Review for their hard work and tireless editing.
Lastly, thanks to nine year-old Toby Hall for catching the mistake in the very
807
CHARLESTON LAW REVIEW
[Volume VI
and personal information stored in your cell phone. What you
may not know, however, is that today’s courts are giving little
weight to the privacy of the intimate details stored in your phone.
California was recently in the media spotlight for this very issue.
In January 2011, the California Supreme Court upheld the
warrantless search of an arrestee’s cell phone.2 Backlash from
this decision led to California’s legislature unanimously passing
a bill to overturn the court’s decision.3 However, the Governor of
California, giving deference to the court’s decision, vetoed the bill
and thus the California Supreme Court ruling stands.4 This
determination is troublesome enough for private individuals,
“[b]ut because of modern professional practices, [cell phones] can
also hold information which would otherwise enjoy a heightened
level of protection—i.e. attorneys’ work product documents and
journalists’ notes.”5 Despite the grave consequences, California
is not the only state taking the position that cell phones may be
searched without warrants.6
Amongst the greatest protections afforded citizens is the
right to privacy granted by the Fourth Amendment. The Fourth
Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers and effects, against unreasonable
searches and seizures” and states that “no warrants shall issue
but upon probable cause.”7 One of the well-known exceptions to
the Fourth Amendment warrant requirement is the search
incident to lawful arrest (SILA) exception, which permits an
officer, subsequent to a lawful arrest, to search the arrestee’s
first sentence that no one else caught.
1. See Cell Phone Subscribers in the U.S., 1985–2010, INFOPLEASE,
http://www.infoplease.com/ipa/A0933563.html (last visited Feb. 17, 2012).
2. People v. Diaz, 244 P.3d 501, 502 (Cal. 2011).
3. Amy Gahran, California Governor Allows Warrantless Search of Cell
Phones, CNN (Oct. 11, 2011), http://articles.cnn.com/2011-10-11/tech/tech_
mobile_california-phone-search-veto_1_cell-phones-smartphone-text-messages.
4. Id.
5. Sonya Ziaja, Debate Over Warrantless Cellphone Searches Heats Up,
FORBES (Sept. 7, 2011, 12:29 PM), http://www.forbes.com/sites/elizabethwoyke/
2011/09/07/debate-over-warrantless-phone-searches-heats-up.
6. See, e.g., United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass.
2009); Diaz, 244 P.3d at 502; Fawdry v. State, 70 So. 3d 626, 630 (Fla. Dist. Ct.
App. 2011); Smallwood v. State, 61 So. 3d 448, 448 (Fla. Dist. Ct. App. 2011).
7. U.S. CONST. amend. IV.
808
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Cell Phone Searches
person and the area within the arrestee’s immediate reach at the
time of the search without first obtaining a search warrant.8 The
Supreme Court has addressed the exception’s application to both
automobiles and containers, but has not yet resolved this issue as
it pertains to cell phones.9 However, lower courts have not been
left without direction. The Supreme Court established the
parameters of the exception early on in Chimel v. California and
limited the exception to situations in which there is a concern for
(1) officer safety or (2) the concealment and destruction of
evidence.10
Furthermore, the Supreme Court recently reiterated the
bounds of the exception in Arizona v. Gant.11 However, the
majority of lower courts continue to overlook Gant’s implications
by analogizing cell phones to containers and permitting
warrantless searches of cell phones pursuant to the SILA
exception, even when concerns for officer safety or destruction of
evidence are not present.12
Because of the vast amount of data that can be stored and
accessed on today’s cell phones,13 analogizing them to mere
containers is simply no longer feasible. Moreover, Gant’s recent
analysis of the SILA exception’s bounds further excludes cell
phone searches from the exception. It seems quite clear that cell
phones do not pose a safety risk to officers, and due to advanced
technology, evidence that may be found on a cell phone can be
preserved,14 thereby eliminating the second and only remaining
8. 1 JOSHUA DRESSLER & ALAN C. MICHAELS, UNDERSTANDING CRIMINAL
PROCEDURE: INVESTIGATION 185 (5th ed. 2010).
9. See Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710 (2009) (automobiles);
United States v. Robinson, 414 U.S. 218 (1973) (containers).
10. 395 U.S. 752, 763 (1969).
11. 556 U.S. at ___, 129 S. Ct. at 1714.
12. See, e.g., United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass.
2009); People v. Diaz, 244 P.3d 501, 502 (Cal. 2011); Fawdry v. State, 70 So. 3d
626, 630 (Fla. Dist. Ct. App. 2011); Smallwood v. State, 61 So. 3d 448, 448 (Fla.
Dist. Ct. App. 2011).
13. WAYNE JANSEN & RICK AYERS, GUIDELINES ON CELL PHONE FORENSICS:
RECOMMENDATIONS OF THE NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY
9 (2007), available at http://csrc.nist.gov/publications/nistpubs/800-101/SP800101.pdf (noting similarities between cell phones and personal computers).
14. See Wireless StrongHold Box, PARABEN CORPORATION, http://paraben.
com/stronghold-box.html (last visited Jan. 16, 2012) [hereinafter StrongHold]
(detailing available devices to block cell phone signals from destroying data
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purpose of the SILA exception. Thus, pursuant to Chimel and
Gant, cell phones should not be searched subject to the SILA
exception unless the cell phone is located within an automobile
and Gant’s automobile-specific holding applies.
Part I of this Note introduces the touchstone case for the
SILA exception. Parts II and III introduce the SILA exception as
it applies to containers and automobiles, and Part IV
demonstrates how lower courts initially treated cell phones
under the SILA exception. Part V explains the Supreme Court’s
recent jurisprudence as to the bounds of the SILA exception, and
Part VI details Gant’s implications and the exception’s
application to cell phones. Part VII details three cases decided
after Gant, which properly struck down warrantless cell phone
searches as exceeding the SILA exception. Part VIII details the
rationale and decisions of four lower courts, which upheld
warrantless cell phone searches even after Gant was decided.
This Note suggests that cell phones can be afforded
constitutional protection through two distinct means. First, Part
IX proposes that, based on the Gant Court’s analysis and the
standard framework of Supreme Court jurisprudence of the SILA
exception, cell phones should never be searched without a
warrant subject to the SILA exception unless the Gant Court’s
automobile-specific rule applies. Part X breaks from traditional
SILA exception scrutiny and posits that based on Supreme Court
Fourth Amendment jurisprudence in Katz v. United States,15
Kyllo v. United States,16 and United States v. Jones,17 the Court
should address the advances in cell phone technology with a rule
that will protect Fourth Amendment rights and strictly adhere to
the bounds of the SILA exception.
before and while one is examining the mobile device).
15. 389 U.S. 347 (1967).
16. 533 U.S. 27 (2001).
17. 565 U.S. ___, 132 S. Ct. 945 (2012).
810
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Cell Phone Searches
II. THE FOUNDATION FOR THE SILA WARRANT
EXCEPTION
The seminal case for the SILA warrant exception is Chimel v.
California, decided in 1969.18 In Chimel, police officers went to
Steven Chimel’s home with an arrest warrant and arrested him
for the burglary of a coin shop.19 The defendant objected to a
search of his home, but officers proceeded to search his entire
home, garage, attic, and workshop pursuant to his lawful
arrest.20 Upon the conclusion of the search, the officers seized
coins, medals, tokens, and various other items.21 Chimel was
then tried and convicted of two counts of burglary.22
The Supreme Court ultimately granted certiorari to set forth
the bounds of the SILA exception.23 The Court held that it is
entirely reasonable for officers to search the arrestee’s person
and the area within the arrestee’s immediate control for two
purposes: (1) to remove weapons the arrestee might seek in an
attempt to resist arrest or effect an escape and (2) to prevent the
concealment or destruction of evidence.24 The Court construed
the phrase “immediate control” to mean the area in which the
arrestee might obtain possession of a weapon or destructible
evidence.25
III. SILA EXCEPTION AND CONTAINERS
While Chimel appeared to make the limits of the exception
clear, the exception’s application to cell phones spurred widespread confusion. The majority of lower courts have extended the
exception to cell phones by analogizing them to containers, thus
allowing warrantless cell phone searches incident to arrest.26
18.
19.
20.
21.
22.
23.
24.
25.
26.
395 U.S. 752 (1969).
Id. at 753.
Id. at 753–54.
Id.
Id.
Id. at 755.
Id. at 763.
Id.
See, e.g., United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass.
2009); People v. Diaz, 244 P.3d 501, 502 (Cal. 2011); Fawdry v. State, 70 So. 3d
626, 630 (Fla. Dist. Ct. App. 2011); Smallwood v. State, 61 So. 3d 448, 448 (Fla.
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The crux of the container analogy originated from lower courts’
application of United States v. Robinson.27 In Robinson, an officer
stopped and arrested Willie Robinson, Jr. for driving with a
revoked operator’s permit and obtaining a permit by misrepresentation.28 Subsequent to Robinson’s arrest, the officer
searched his person, at which time the officer felt an object in
Robinson’s left breast pocket.29 The officer then retrieved a
crumbled cigarette package from the breast pocket and opened
the pack, finding fourteen capsules of white power, later
determined to be heroin.30 The Supreme Court held that where
there is a lawful custodial arrest, a complete search of the
arrestee is both an exception to the warrant requirement and a
reasonable search under the Fourth Amendment.31 The Court
further stated:
The authority to search the person incident to a lawful
custodial arrest, while based upon the need to disarm and to
discover evidence, does not depend on what a court may later
decide was the probability in a particular arrest situation that
weapons or evidence would in fact be found upon the person of
the suspect.32
The Court determined that where there is probable cause, a
custodial arrest is a reasonable intrusion under the Fourth
Amendment.33 Because that intrusion is lawful, a search incident
to arrest does not require any additional justification.34
Dist. Ct. App. 2011).
27. 414 U.S. 218 (1973).
28. Id. at 220.
29. Id. at 223.
30. Id.
31. Id. at 235.
32. Id.
33. Id.
34. Id.
812
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Cell Phone Searches
IV. SILA EXCEPTION AND AUTOMOBILES
Preceding the Court’s decision in Gant were the Court’s
decisions in New York v. Belton35 and Thornton v. United
States,36 which addressed the application of the SILA exception
in the context of vehicle searches. In Belton, an officer stopped a
vehicle for speeding.37 Four men were in the vehicle, one of
which was Robert Belton.38 The officer recognized the smell of
burnt marijuana and subsequently discovered an envelope
containing marijuana on the floor of the vehicle.39 The officer
ordered all four men out of the car and arrested them for the
unlawful possession of marijuana.40 The officer found Belton’s
black leather jacket upon searching the backseat and found
cocaine in the zipped pocket.41 The Belton Court created a brightline rule for automobiles stating that law enforcement may
search the passenger compartment of an automobile, including
all containers therein, incident to a lawful arrest of an occupant
of the vehicle.42 The Court determined that officers may search
the contents of containers found in the passenger compartment
because they too are in the arrestee’s reach.43 The Belton Court
further elaborated on the meaning of “container,” finding it
denotes “any object capable of holding another object.”44
This rule seemed to dispense with the two rationales for the
SILA exception and allow officers to search the passenger
compartment even where the arrestee is handcuffed or in the
police car and there is no threat of the arrestee obtaining
weapons or concealing evidence.45 Criticizing this flaw in the
majority’s opinion, Justice Brennan stated in dissent that the
Court adopted a fiction by holding that the interior of a vehicle is
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
453 U.S. 454 (1981).
541 U.S. 615 (2004).
453 U.S. at 455.
Id.
Id. at 455–56.
Id. at 456.
Id.
Id. at 460.
Id.
Id. at 460 n.4.
DRESSLER & MICHAELS, supra note 8, at 200.
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always in the immediate control of an arrestee who had recently
been an occupant of the vehicle.46
Belton’s bright-line rule was further expanded in Thornton v.
United States,47 where the Court held that Belton applied not
only to occupants of the vehicle, but also to recent occupants of
the vehicle.48 In Thornton, the officer noticed Marcus Thornton
attempting to avoid driving alongside him.49 The officer then
checked Thornton’s license plate and found it was registered to
another vehicle.50 However, before the officer had an opportunity
to pull Thornton over, Thornton pulled into a parking lot, parked,
and exited the vehicle.51 Thornton consented to a pat down
search and the officer found marijuana and crack cocaine in his
left front pocket.52 The officer then placed Thornton under arrest
and proceeded to search Thornton’s vehicle, finding a handgun
under the driver’s seat.53 The Thornton Court held that once law
enforcement determines there is probable cause to make an
arrest, officers can reasonably search the entire passenger
compartment, irrespective of the likelihood of the arrestee
accessing weapons or evidence inside the vehicle, so long as the
arrestee is a “recent occupant” of the vehicle.54
V. SILA EXCEPTION AND CELL PHONES
While the Supreme Court has analyzed both containers and
automobiles with respect to the SILA exception, cell phones have
not yet been directly addressed. Left without specific direction,
in United States v. Finley, the Fifth Circuit erroneously upheld a
warrantless search of a cell phone’s contents as incident to a
lawful arrest by applying Robinson and analogizing a cell phone
to a container.55 In Finley, officers coordinated a controlled
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
814
Belton, 453 U.S. at 466 (Brennan, J., dissenting).
541 U.S. 615 (2004).
Id. at 617.
Id.
Id. at 618.
Id.
Id.
Id.
Id. at 623–24.
477 F.3d 250, 259 (5th Cir. 2007).
2012]
Cell Phone Searches
purchase of methamphetamine from Mark Brown.56 Finley drove
Brown to the designated location where the officers’ cooperating
source approached the passenger side of the vehicle and Brown
completed the transaction.57 Finley then drove away and nearby
officers performed a traffic stop.58 Once Finley and Brown were
detained, officers searched Finley’s vehicle, finding the same
marked bills used in the transaction and two medicine bottles
containing methamphetamine and drug paraphernalia.59
Officers also searched Finley’s person and found a cell phone in
his pocket.60 An officer then searched his cell phone call records
and text messages.61 When confronted with the text messages,
Finley admitted that most of the messages referred to marijuana,
which he admitted to distributing at least once.62 In citing to
Robinson, the court found that it was a well settled rule that a
full search of the arrestee is not only reasonable under the
Fourth Amendment, but also an exception to the warrant
requirement.63 The court further noted that both Robinson and
Belton permitted the scope of the SILA exception to extend to
containers located on the arrestee’s person, and thus upheld the
search of Finley’s cell phone.64 Four years later, the Fifth Circuit
reiterated that Finley plainly established that an officer effecting
a lawful arrest need not obtain a search warrant to search
through text messages on a cell phone recovered from the area
within the arrestee’s reach.65
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
Id. at 253.
Id.
Id. at 254.
Id.
Id.
Id.
Id. at 254–55.
Id. at 259.
Id. at 260.
United States v. Curtis, 635 F.3d 704, 714 (5th Cir. 2011).
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VI. ARIZONA V. GANT: THE SUPREME COURT’S RETURN
TO CHIMEL
In its recent decision in Arizona v. Gant, the Court ultimately
returned to the holding in Chimel.66 In Gant, officers arrested
Rodney Gant for driving with a suspended license.67 Gant was
handcuffed and locked in the back of a patrol car when two police
officers searched his vehicle, finding a gun and cocaine in the
pocket of a jacket located on the backseat of the car.68 Gant
contended that because he did not pose a threat to officers after
he was handcuffed in a patrol car and because he was arrested
for a traffic offense for which evidence would not be found in the
car, Belton did not authorize the search of his car.69 However,
the Belton decision “ha[d] been widely understood to allow a
vehicle search incident to the arrest of a recent occupant even if
there [was] no possibility the arrestee could gain access to the
vehicle at the time of the search.”70 The Gant Court reasoned
that the broad reading of Belton was attributable to Justice
Brennan’s dissent in which he characterized the Court’s holding
as relying on the “fiction . . . that the interior of a car is always
within the immediate control of an arrestee who has recently
been in the car.”71
Despite the predominate view in lower courts, the Gant
Court rejected a broad reading of Belton and held that the
Chimel rationale authorizes police officers to search a recent
occupant’s vehicle incident to arrest “only when the arrestee is
unsecured and within reaching distance of the passenger
compartment at the time of the search.”72 The Court further
concluded that “circumstances unique to the vehicle context
justify a search incident to a lawful arrest when it is ‘reasonable
to believe evidence relevant to the crime of arrest might be found
66. 556 U.S. ___, 129 S. Ct. 1710 (2009) (reaffirming the holding in Chimel
v. California, 395 U.S. 752, 768 (1969)).
67. Id. at ___, 129 S. Ct. at 1714.
68. Id.
69. Id. at ___, 129 S. Ct. at 1715.
70. Id. at ___, 129 S. Ct. at 1718.
71. Id. (quoting New York v. Belton, 453 U.S. 454, 466 (1981) (Brennan, J.,
dissenting)).
72. Id. at ___, 129 S. Ct. at 1719.
816
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Cell Phone Searches
in the vehicle.’”73
The Court found the search here was
unreasonable because the officers could not have reasonably
believed Gant could have reached his car at the time of the
search or that evidence of the arresting offense might have been
located therein.74 The Gant Court determined that neither
justification for the SILA exception is present, and the rule does
not apply if there is no possibility that the arrestee can access the
area to be searched.75 The Court articulated that the Chimel
limitations “continue[] to define the boundaries of the exception”
and “ensure[] that the scope of a search incident to arrest is
commensurate with its purposes.”76 To further support its strict
adherence and return to Chimel, the Court emphasized its policy
considerations stating:
A rule that gives police the power to conduct such a search
whenever an individual is caught committing a traffic offense,
when there is no basis for believing evidence of the offense
might be found in the vehicle, creates a serious and recurring
threat to the privacy of countless individuals. Indeed, the
character of that threat implicates the central concern
underlying the Fourth Amendment—the concern about giving
police officers unbridled discretion to rummage at will among a
person’s private effects.77
To further express its criticism of the broad reading of Belton,
the Court stated, “We now know that articles inside the
passenger compartment are rarely ‘within the area into which an
arrestee might reach,’ and blind adherence to Belton’s faulty
assumption would authorize myriad unconstitutional searches.
The doctrine of stare decisis does not require us to approve
routine constitutional violations.”78 While it appeared that the
broad reading of Belton had been widely taught and relied upon
by law enforcement officers for twenty-eight years, the Court
found, as a result, countless individuals had their constitutional
73. Id. at ___, 129 S. Ct. at 1719 (citing Thornton v. United States, 541
U.S. 615, 632 (2004) (Scalia, J., concurring in the judgment)).
74. Id. at ___, 129 S. Ct. at 1719.
75. Id. at ___, 129 S. Ct. at 1716.
76. Id.
77. Id. at ___, 129 S. Ct. at 1720.
78. Id. at ___, 129 S. Ct. at 1723 (quoting New York v. Belton, 453 U.S.
454, 460 (1981)).
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right to the security of their private effects violated.79 The Gant
Court, through its countless reminders of Chimel’s twin
rationales for the SILA exception and criticism of broad
interpretations of Belton, sent a strong message as to the
parameters of the SILA exception.
VII. APPLYING THE SILA EXCEPTION JUSTIFICATIONS TO
CELL PHONES
While Gant addresses the SILA exception as it applies in the
context of vehicles, its general analysis and firm footing in the
two rationales for the exception can be extended to the exception
in all contexts. In United States v. Shakir, the Third Circuit read
Gant as refocusing attention on the two purposes behind the
exception.80 When argued that Gant applied only to vehicle
searches, the Shakir court expressed that they did not read Gant
so narrowly.81 Accordingly, to determine whether cell phones
should be searched subject to the SILA exception, courts should
determine if Chimel’s two purposes for the exception are present.
Because it is unlikely that cell phones will be used to harm the
officer after they are seized, this consideration falls to the
wayside.82 However, it can be argued that the destruction or
concealment of evidence on a cell phone can become an issue due
to recent technology permitting cell phone owners to remotely
clear all information from their phones, even after the phone is in
police custody.83 Remote wipe functions operate by having the
owner send a command from a computer to the phone that clears
79. Id. at ___, 129 S. Ct. at 1722–23.
80. United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010), cert. denied,
562 U.S. ___, 131 S. Ct. 841 (2010).
81. Id.
82. See United States v. Florez-Lopez, 670 F.3d 803, 806 (7th Cir. 2012)
(reasoning that, although there are stun guns resembling cell phones, once the
cell phone is secured and in possession of an officer, the officer is not
endangered).
83. See Jamie Lendino, Kill Your Phone Remotely, PCMAG.COM (Sept. 11,
2009), http://www.pcmag.com/article2/0,2817,2352755,00.asp; Prince McLean,
MobileMe Pushes Out New Find My iPhone, Remote Wipe Service, APPLE
INSIDER (June 17, 2009), http://www.appleinsider.com/articles/09/06/17/mobile
me_pushes_out_new_find_my_iphone_remote_wipe_service.html.
818
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Cell Phone Searches
the phone of all its data.84 Despite this threat, methods are
available to prevent such activities and to preserve data in the
event that destruction of evidence would be an issue before a
search warrant could be obtained.85 Remote wipe functions only
operate if there is an internet connection or signal reaching the
phone.86 If the phone is powered off, the battery removed, or the
phone placed in a container that blocks cell phone signals and
internet connections, the phone cannot receive the command to
clear data.87 If destruction of evidence is an issue, an officer can
seize the phone, power it off, transport it to the police station,
and place it in a container capable of blocking all signals.88 The
officer could then obtain a search warrant and electronically pull
the data from the phone while still in the protective container.89
Accordingly, neither officer safety nor destruction of evidence are
a problem with cell phones. The two purposes of the exception
are absent. Thus, under the rationale set forth in Gant, cell
phones should not be searched incident to a lawful arrest unless
Gant applies and it is reasonable to believe evidence of the
arresting offense may be found on the cell phone located within
the vehicle.
84. See Lendino, supra note 83; McLean, supra note 83.
85. See StrongHold, supra note 14 (detailing available devices to block cell
phone signals from destroying data before and while one is examining mobile
devices); JANSEN & AYERS, supra note 13, at 38 (outlining multiple methods of
disabling wireless communication including: using a jamming or spoofing
device, using shielded work areas, using shielded containers, and using a
substitute (U)SIM).
86. See United States v. Flores-Lopez, 670 F.3d 803, 808 (7th Cir. 2012).
The court further noted that wiped data may be recovered in a laboratory. Id.
Technology is also available to “mirror” or copy the cell phone’s contents in
order to preserve it in the event the phone is remotely wiped. Id. at 809. The
“mirror” technology would allow officers to make the copy, without viewing its
contents, unless the original is destroyed. Id. See also McLean, supra note 83.
87. See McLean, supra note 83.
88. See JANSEN & AYERS, supra note 13, at 33–38; StrongHold, supra note
14.
89. See JANSEN & AYERS, supra note 13, at 33–38; StrongHold, supra note
14.
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VIII. LOWER COURT DECISIONS STRIKING DOWN
WARRANTLESS SEARCHES OF CELL PHONES
At least three lower court decisions have used the Gant
Court’s reasoning to determine that officers are not authorized to
search the contents of cell phones incident to lawful arrest.90 In
State v. Smith, officers initiated a controlled purchase of crack
cocaine from the defendant.91 Officers then arrested the
defendant and searched his cell phone without first obtaining a
warrant.92 The Ohio Supreme Court directly rejected the container analogy accepted by other courts.93 The court appropriately held that where no evidence is presented to establish
a search of the arrestee’s cell phone is necessary for officer safety
or because of exigent circumstances, the SILA exception does not
apply and the Fourth Amendment prohibits a search of the
phone.94 The Smith court determined that once the phone was
placed in police custody, the state’s immediate interest in
collecting and preserving evidence was satisfied, and officers
could take preventative measures to ensure the information in
the cell phone was neither lost nor erased before obtaining a
search warrant.95
In United States v. McGhee, officers arrested Terrell McGhee
pursuant to an arrest warrant for conspiring to possess and
distribute crack cocaine approximately ten months prior to his
arrest.96 Upon searching him, an officer removed his cell phone,
scanned the contacts list, and gave the phone to another officer to
document the list.97 The court properly held that the cell phone
seized at the time of his arrest could not have reasonably been
thought to contain information relating to the alleged crimes that
occurred ten months prior nor did it present a risk of harm to
90. See United States v. McGhee, No. 8:09CR31, 2009 WL 2424104 (D.
Neb. July 21, 2009); United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla.
2009); State v. Smith, 920 N.E.2d 949 (Ohio 2009).
91. 920 N.E.2d at 950.
92. Id. at 950–51.
93. Id. at 953–54 .
94. Id. at 956.
95. Id. at 955.
96. No. 8:09CR31, 2009 WL 2424104, at *1 (D. Neb. July 21, 2009).
97. Id.
820
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Cell Phone Searches
officers or appear to be or to conceal destructible evidence.98
Thus, the court found the search of McGhee’s cell phone was
unjustified.99
The Middle District of Florida reached a similar conclusion in
United States v. Quintana, which was decided while Gant was
pending before the Supreme Court.100 The defendant in Quintana
was stopped on the highway after an officer detected that he was
speeding.101 Upon approaching the vehicle, the officer identified a
strong odor of marijuana emanating from the vehicle, and the
defendant consented to a search of his car.102 Officers located a
duffel bag, which had a strong odor of raw marijuana, but never
located marijuana inside the bag or anywhere else in the car.103
However, the defendant was handcuffed and arrested after the
officer was notified that he was driving with a suspended
license.104 While in custody, the defendant’s cell phone rang
repeatedly, and an officer retrieved the phone from the
defendant’s pocket, without permission, and called the last
incoming number.105 In an effort to find evidence relating to the
odor of marijuana, an officer then began looking through the
phone and discovered a picture of a marijuana “grow house.”106
This photo ultimately led officers to the address on the
defendant’s driver’s license, where they were able to verify that
the residence was the site of a grow house.107 The defendant
argued the officers exceeded the scope of their authority by
removing his cell phone from his pocket and looking through his
photographs.108 The court noted that guidance “may soon be
forthcoming” from the Supreme Court’s decision in Gant.109 The
court cited Chimel stating that the Fourth Amendment tolerates
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
Id. at *3.
Id.
594 F. Supp. 2d 1291, 1300 (M.D. Fla. 2009).
Id. at 1294.
Id. at 1294–95.
Id. at 1295.
Id.
Id.
Id. at 1295–96.
Id. at 1296.
Id. at 1298–99.
Id. at 1300.
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searches incident to lawful arrests because they “provide for the
safety of law enforcement and prevent the destruction or
concealment of evidence.”110 The court pointed out that the
officers were not seeking to preserve evidence that the defendant
was driving with a suspended license, but rather were seeking to
find information relating to the odor of marijuana they detected
in the car.111 The court ultimately held that the search was “not
justified by the twin rationales of Chimel and pushe[d] the
search-incident-to-arrest doctrine beyond its limits.” 112
In the short time following Gant and in the wake of these
decisions, there was hope that the Court’s strong message in
Gant would resolve the confusion. One scholar pointed out that
seizing the cell phone eliminated the concerns behind the
exception and suggested a new rule, “unique to the cell phone
context,” be created.113 The rationale behind the suggested rule
is that just as the Gant Court held there are circumstances
unique to vehicles, there may similarly be circumstances unique
to cell phones which justify giving discretion to arresting officers
to search the contents of phones if they have reason to believe
evidence of the arresting offense may be present in the phone.114
This reasoning, however, is unfounded. Cell phones arguably are
unique and distinct from other objects.115 However, the
characteristics making cell phones unique are profoundly
different from those making automobiles unique, which lend the
two to entirely different analyses. Automobiles have long been
distinguished as to the warrant requirements for searches, but
110.
111.
112.
113.
Id. at 1299.
Id. at 1300.
Id.
Ben E. Stewart, Cell Phone Searches Incident to Arrest: A New
Standard Based on Arizona v. Gant, 99 KY. L.J. 579, 599 (2011). Stewart
suggests that officers should be permitted to search the contents of an arrestee’s
cell phone subject to the SILA exception if he has reason to believe evidence of
the arresting offense may be found on the phone. Id. at 580-81. The rule is
claimed to balance society’s interest in effective law enforcement with the
liberty interests of individuals. Id at 581.
114. Id.
115. See People v. Diaz, 244 P.3d 501, 506 (Cal. 2011) (discussing
defendant’s argument that the court should focus on the difference in character
of cell phones and other objects); State v. Smith, 920 N.E.2d 949, 953–54 (Ohio
2009) (refusing to accept the comparison that cell phones are akin to closed
containers); infra Part X (detailing the unique capabilities of cell phones).
822
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Cell Phone Searches
this distinction is founded on the lowered expectation of privacy
found in an automobile and the automobile’s inherent mobility.116
Cell phones, on the other hand, are unique as to the vast amount
of data that can be accessed through one object.117 Unlike the
lesser expectation of privacy rationale for automobiles, cell
phones certainly serve as a repository of one’s personal effects
and its contents are not in plain view. Courts have found that
individuals have a reasonable expectation of privacy in the data
in their cell phones118 and because of the personal nature of the
data stored in cell phones, courts would likely find they have a
much higher expectation of privacy than an automobile. In Gant,
the Court pointed out that “a motorist’s privacy interest in his
vehicle is less substantial than in his home.”119 There is a strong
116. The lesser expectation of privacy rationale was first articulated in
Cardwell v. Lewis in which the Court stated:
One has a lesser expectation of privacy in a motor vehicle because its
function is transportation and it seldom serves as one’s residence or as
the repository of personal effects. A car has little capacity for escaping
public scrutiny. It travels public thoroughfares where both its
occupants and its contents are in plain view.
417 U.S. 583, 590 (1974). See also DRESSLER & MICHAELS, supra note 8, at 207–
27 (detailing the general rules of the automobile search warrant exception).
117. A federal district court in California noted that “modern cellular
phones have the capacity for storing immense amounts of private information . .
. . Individuals can store highly personal information on their cell phones, and
can record their most private thoughts and conversations on their cell phones
through email and text, voice and instant messages.” United States v. Park,
No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007); see Daniel
E. Harmon, The State of the Apps: They Do Much More Than Track Weather
and Sports, 28 LAW. PC, no. 9, Feb. 1, 2011 at 1 [hereinafter Apps: Part 1];
Daniel E. Harmon, State of the Apps, Part 2: Enjoy & Use Them – But Don’t
Step Into the “App Trap,” 28 LAW. PC, no. 10, Feb. 15, 2011 at 1 [hereinafter
Apps: Part 2]; see also infra Part X (detailing the unique capabilities of cell
phones).
118. See Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir.
2008) (finding cell phone users have a reasonable expectation of privacy in the
content of their text messages), rev’d on other grounds sub nom. City of Ontario,
Cal. v. Quon, 560 U.S. ___, 130 S. Ct. 2619 (2010); United States v. Finley, 477
F.3d 250, 259 (5th Cir. 2007) (finding a reasonable expectation of privacy in call
records and text messages stored in a cell phone); United States v. McGhee, No.
8:09CR31, 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (concluding that the
defendant had a reasonable expectation of privacy in the contents of his cell
phone because of the vast amount of information stored that was expected to be
free from intrusion by the public and the government).
119. Arizona v. Gant, 556 U.S. ___, ___, 129 S. Ct. 1710, 1720 (2009).
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argument that a cell phone’s contents are more akin to the
private effects found in one’s home than the items one may find
in an automobile. Accordingly, the rationale behind allowing
warrantless searches of automobiles should not apply equally to
cell phones. The mere “reason to believe” standard should not
justify government intrusion into the content on cell phones.
Another scholar discussed Gant’s implications on the SILA
exception and, due to Gant and the early trend among lower
courts, predicted other courts would continue to strike down
warrantless searches of cell phones.120 In fact, we have now seen
courts moving to both extremes. While warrantless searches of
cell phones have been struck down as outlined above, a number
of lower courts continue to permit the search of cell phones
pursuant to the SILA exception without reference to the
heightened scrutiny of Chimel’s twin considerations utilized in
Gant.121 Some courts upholding the searches completely ignore
Gant.122 Others look to the case as a recent decision involving
the SILA exception, but find the case inapplicable where the
search involves the arrestee’s person rather than a vehicle.123
Such courts sort through a plethora of cases, tracking the
evolution of the exception and its applicability to various
scenarios, never finding a case completely analogous.124 Instead
120. Chelsea Oxton, The Search Incident to Arrest Exception Plays Catch
Up: Why Police May No Longer Search Cell Phones Incident to Arrest Without a
Warrant, 43 CREIGHTON L. REV. 1157, 1220 (2010). Oxton suggests that lower
court cases upholding warrantless searches of cell phones subject to the SILA
exception erred for three fundamental reasons: “(1) the digital type of
information cell phones typically store; (2) the massive amount of private
information cell phones store; and (3) the extraordinary technology implicit in
modern cell phones.” Id. at188-89. Oxton further concluded that lower courts
upholding these searches erred in light of Gant’s implications on the SILA
exception. Id. at 1189.
121. See United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass. 2009);
People v. Diaz, 244 P.3d 501, 502 (Cal. 2011); Fawdry v. State, 70 So. 3d 626,
630 (Fla. Dist. Ct. App. 2011); Smallwood v. State, 61 So. 3d 448, 448 (Fla. Dist.
Ct. App. 2011).
122. See, e.g., Wurie, 612 F. Supp. 2d at 110 (upholding the warrantless
search of arrestee’s cell phone finding no reason to distinguish cell phones from
other personal containers).
123. See Diaz, 244 P.3d at 502; Fawdry, 70 So. 3d at 630; Smallwood, 61 So.
3d at 448.
124. See Wurie, 612 F. Supp. 2d at 110; Diaz, 244 P.3d at 502; Fawdry, 70
So. 3d at 630; Smallwood, 61 So. 3d at 448.
824
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Cell Phone Searches
of then looking to the policy and rationale behind the exception,
which the Supreme Court has laid out, they simply analogize the
cell phone to a container, permit the search, and overlook the
Supreme Court’s analysis that the exception is inapplicable
unless at least one of the Chimel rationales is present.125
IX. POST-GANT DECISIONS UPHOLDING WARRANTLESS
SEARCHES OF CELL PHONES PURSUANT TO THE
SILA EXCEPTION
As stated above, despite what appeared to be a clear
statement in Gant of the bounds of the SILA exception, many
lower courts continue to uphold warrantless searches of cell
phones.126 For instance, in Smallwood v. State, the District Court
of Appeal of Florida erroneously upheld the warrantless search of
an arrestee’s cell phone finding that Robinson was
determinative.127 Tyrone Smallwood was arrested for armed
robbery and possession of a firearm by a convicted felon.128
Officers searched Smallwood’s cell phone and found a photograph
of Smallwood holding large amounts of money, folded and
secured in the same manner as that taken in the robbery.129 Also
in the photographs was a gun with the same characteristics as
the one used in the robbery.130 The Smallwood court laid out the
evolution of the SILA exception, covering Chimel, Robinson,
Belton, and even Gant.131 The court, however, determined that
Gant was inapplicable where the item searched was located on
the arrestee’s immediate person rather than in a vehicle.132
Despite this finding, the court noted that the Supreme Court’s
rationale in Gant was “very informative here” and its concerns
were applicable.133 The court shared in the Gant Court’s concerns
125. See Wurie, 612 F. Supp. 2d at 110; Diaz, 244 P.3d at 502; Fawdry, 70
So. 3d at 630; Smallwood, 61 So. 3d at 448.
126. See Wurie, 612 F. Supp. 2d at 110; Diaz, 244 P.3d at 502; Fawdry, 70
So. 3d at 630; Smallwood, 61 So. 3d at 448.
127. 61 So. 3d at 448.
128. Id.
129. Id. at 449.
130. Id.
131. Id. at 449–53.
132. Id. at 452.
133. Id. at 462.
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finding “that giving officers unbridled discretion to rummage
through at will the entire contents of one’s cell phone . . . creates
a serious and recurring threat to the privacy of countless
individuals.”134 While the court briefly mentioned that Gant
reaffirmed the original purposes of the exception articulated in
Chimel, the court failed to apply those two purposes to the case
before them.135
The District Court of Appeal of Florida again upheld the
warrantless search of an arrestee’s cell phone pursuant to the
SILA exception in Fawdry v. State.136 Despite what appeared to
be a step in the right direction in the Smallwood decision with
respect to Gant, the court again held the warrantless search of
the arrestee’s cell phone fell within the scope of the SILA
exception, reasoning that Robinson was dispositive of the case.137
Here, officers went to Jeffrey Fawdry’s home to serve an arrest
warrant for multiple counts of sexual battery on a child.138 After
arresting Fawdry, an officer searched his person, finding a cell
phone.139 Fawdry became nervous and repeatedly requested the
phone be given to his sister.140 The officer flipped the phone open
and found the background image to be a photograph of an
erotically-posed minor female.141 The officer then proceeded to
search the media files of the phone, finding child pornography.142
The Fawdry court incorrectly reasoned that Gant did nothing to
alter the rule in the context of this case and that an officer can
search a cell phone found on the arrestee’s person incident to
lawful arrest.143 The court concluded that Gant’s limitation was
irrelevant here because a vehicle search did not occur.144 While
the court mentioned that Gant narrowed the broad reading of
Belton, it never discussed the reasoning used in Gant or the twin
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
826
Id.
Id.
70 So. 3d 626 (Fla. Dist. Ct. App. 2011).
Id. at 627, 630.
Id. at 627.
Id.
Id.
Id.
Id.
Id. at 630.
Id.
2012]
Cell Phone Searches
purposes behind the exception with which Gant focused.145
As briefly mentioned in the introduction above, the Supreme
Court of California held the warrantless search of the arrestee’s
cell phone was valid under the SILA exception in People v.
Diaz.146 In Diaz, officers witnessed Gregory Diaz participate in a
police informant’s controlled purchase of ecstasy.147 An officer
stopped Diaz immediately after the sale and arrested him for
conspiring in the sale of drugs.148 The officer found a small
amount of marijuana in Diaz’s pocket along with his cell phone,
which was placed with other evidence after he was transported to
the sheriff’s station.149 In an initial interview, Diaz denied any
knowledge of the drug transaction.150 An officer then searched
through Diaz’s text messages, finding one that said “6 4 80,”
which the officer interpreted to mean “six pills of ecstasy for
$80.”151 The officer questioned Diaz about the text message and
Diaz subsequently admitted to his involvement in the sale of
ecstacy.152 The court reasoned that the cell phone was an object
of personal property on the arrestee’s person at the time of arrest
and in that regard it was analogous to the clothes taken from the
arrestee in United States v. Edwards153 and the cigarette package
taken from the arrestee’s jacket pocket in Robinson.154 Citing
Robinson, the court erroneously held the cell phone was subject
to inspection by the officer without a warrant.155 The court briefly
mentioned Gant’s holding and narrow reading of Belton but did
not begin to address the limitations of the SILA exception that
Gant reaffirmed.156 The court further noted that Gant was
145.
146.
147.
148.
149.
150.
151.
152.
153.
Id.
244 P.3d 501 (Cal. 2011).
Id. at 502.
Id.
Id.
Id.
Id. at 502–03.
Id. at 503.
415 U.S. 800 (1974) (holding the warrantless seizure of defendant’s
clothing, which he was wearing at the time of arrest, was valid as a search
incident to lawful arrest).
154. Diaz, 244 P.3d at 505–06 (citing Edwards, 415 U.S. 800; United States
v. Robinson, 414 U.S. 218 (1973)).
155. Id. at 506.
156. Id. at 516.
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irrelevant here beyond its implications in Belton.157
In United States v. Wurie, decided less than a month after
Gant, the district court failed to mention the Supreme Court’s
new ruling.158 In Wurie, an officer observed what he believed to
be a drug transaction. 159 Wurie was arrested for distributing
cocaine and taken to the police station.160 Officers seized two cell
phones and searched one of the phones’ call logs, finding
numerous calls from “my house.”161 Officers then determined the
street address associated with the “my house” telephone
number.162 Wurie, however, claimed he lived at a different
address.163 The officers were ultimately able to obtain a search
warrant of the “my house” location due to additional facts
connecting Wurie to the apartment.164 Based on evidence found
in the apartment, Wurie was charged with felony possession of a
firearm and ammunition, distribution of cocaine base within
1,000 feet of a school, and possession of crack cocaine with intent
to distribute.165 The court upheld the warrantless search of
Wurie’s cell phone, inappropriately concluding that there was “no
principled basis for distinguishing a warrantless search of a cell
phone from the search of other types of personal containers found
on [the] defendant’s person” either at the time of arrest or at the
booking search.166 Although the Wurie court did not mention
Gant, it did acknowledge that the purposes of the SILA exception
are limited to preservation of evidence and seizure of destructible
evidence.167 Despite this acknowledgement, the court did not
consider the two purposes when it determined that Wurie’s cell
157.
158.
159.
160.
161.
162.
163.
164.
Id. at 507 n.9.
612 F. Supp. 2d 104 (D. Mass. 2009).
Id. at 106.
Id.
Id.
Id. at 106–07.
Id. at 107.
Id. Wurie’s keys fit the door at the address associated with the “my
house” telephone number, the woman answering the door at the “my house”
address appeared to be the same woman in the wallpaper photograph on
Wurie’s cell phone, and the mailbox outside the “my house” location had
“Wurie” written on it. Id.
165. Id. at 105.
166. Id. at 110.
167. Id. at 108.
828
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Cell Phone Searches
phone was lawfully examined.168
X. THE CAUTIONARY TALE FROM GANT
It is quite clear that lower courts differ as to their reasoning
and ultimate conclusions.169 What is puzzling, however, is why
many courts did not take notice of, or simply diminished the
applicability of Gant as it applies to the SILA exception, even
through their uncertainty. While the Court’s ultimate ruling in
Gant was specific to automobiles, the sole reason the Court
reached their conclusion was based on its strict adherence to the
two purposes behind the exception, first articulated in Chimel.170
The cautionary tale from Gant is that the Court will not simply
follow what it believes to be an unreasonable and unconstitutional intrusion into privacy merely because the law
permitted it in the past and that sound policy will prevail over
twenty-eight years of permitting unconstitutional searches.171
As stated above, neither officer safety nor the destruction or
concealment of evidence are an issue with cell phones. Thus,
following Gant’s reasoning, cell phones should never be searched
incident to lawful arrest without first obtaining a search
warrant, unless it is reasonable to believe that evidence of the
arresting offense may be found in the vehicle. This would
inevitably include the contents of a cell phone located within the
vehicle during the course of a search, pursuant to Gant, where
officers have reason to believe evidence of the arresting offense is
located on the cell phone.
The appropriate application of Gant in a case involving a cell
phone is illustrated in Hawkins v. State.172 Haley Hawkins was
arrested and indicted based on multiple violations of the Georgia
Controlled Substances Act.173 The investigation began when a
concerned mother contacted officers and reported that text
168. Id. at 110.
169. See supra Parts VII–VIII.
170. See Arizona v. Gant, 556 U.S. ___, ___, 129 S. Ct. 1710, 1716 (2009)
(noting the two purposes of the SILA exception are concern for officer safety and
preventing the destruction or concealment of evidence).
171. See id. at ___, 129 S. Ct. at 1721.
172. 704 S.E.2d 886 (Ga. Ct. App. 2010).
173. Id. at 888.
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messages regarding narcotics were being sent to her son’s cell
phone and turned the cell phone over to the police.174 When
Hawkins again sent a text message to the phone inquiring about
controlled substances, the officer, posing as the son, responded to
the message and arranged to meet with Hawkins at a local
restaurant.175 The officer observed Hawkins drive into the
parking lot and enter data into her phone, at which time the
officer instantly received a message on the son’s cell phone.176
The officer then approached Hawkins’s automobile and arrested
her.177 Police then searched Hawkins’s vehicle, finding her cell
phone, which contained text messages that the officer and
Hawkins had exchanged throughout the day.178 Hawkins argued
that the officers violated the Fourth Amendment by seizing and
searching her cell phone without first obtaining a warrant.179
The court articulated that the most restrictive interpretation of
Gant would be a search limited in scope to “places and things in a
vehicle in which one reasonably might find the specific kinds of
evidence of the crime of arrest that the officer has reason to
believe may be found in the vehicle.”180 The court rejected
Hawkins’s argument and held that even under the most
restrictive plausible interpretation of Gant, the search of
Hawkins’s cell phone was reasonable.181 In situations such as
this, officers have every reason to believe evidence of the
arresting offense would be found in the automobile at the time of
arrest, and thus, a search of the cell phone would be justified.182
XI. THE NEED FOR A NEW PERSPECTIVE TO ENCOMPASS
EVOLVING TECHNOLOGY
A proper analysis of Gant reveals how cell phones fit into
current SILA exception jurisprudence. Additionally, an analysis
174.
175.
176.
177.
178.
179.
180.
181.
182.
830
Id.
Id.
Id.
Id.
Id. at 889.
Id.
Id. at 889–90.
Id. at 890.
See id.
2012]
Cell Phone Searches
that breaks from traditional SILA jurisprudence confirms the
need for a new approach. While the analogy of a cell phone to a
container may have initially appeared appropriate, new
technology calls for a new analysis. Prime examples of this
principle are at work in Katz v. United States,183 Kyllo v. United
States,184 and United States v. Jones.185
In Katz, Charles Katz was convicted for violating a federal
statute by transmitting wagering information by telephone from
Los Angeles to Boston and Miami.186 FBI agents overheard Katz’s
telephone conversations by utilizing an electronic listening and
recording device, which they attached to the outside of a pubic
telephone booth.187 The Katz Court found that the previous
standard requiring there be a trespass or physical intrusion in
order for the Fourth Amendment to be implicated had been so
eroded that it could no longer be controlling.188 The Court thus
broadened the standard for when an individual receives Fourth
Amendment protection.189 Most clearly articulated in Justice
Harlan’s concurrence, the new standard requires (1) a person
exhibit an actual expectation of privacy and (2) the individual’s
expectation be one that society is willing to recognize as
reasonable.190 The new technological capability to listen to and
record conversations, without having to physically trespass,
presented the Court with a difficult situation. The Court found
that a search had in fact occurred while precedent dictated there
was none.191 Faced with this dilemma, rather than yielding to
the current rule, the Court adopted a more viable and fitting
standard in order to keep pace with the current state of
technology and protect Fourth Amendment rights. The Court
hinged its analysis on the expectation of privacy Katz had in the
telephone booth. In referring to the telephone booth, the Court
stated, “one who occupies it, shuts the door behind him, and pays
183.
184.
185.
186.
187.
188.
189.
190.
191.
389 U.S. 347 (1967).
533 U.S. 27 (2001).
565 U.S. ___, 132 S. Ct. 945 (2012).
Katz, 389 U.S. at 348.
Id.
Id. at 353.
Id. at 351–52.
Id. at 361 (Harlan, J., concurring).
See id. at 350−51 (majority opinion).
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the toll that permits him to place a call is surely entitled to
assume that the words he utters into the mouthpiece will not be
broadcast to the world.”192 The Court found that what one “seeks
to preserve as private, even in an area accessible to the public,
may be constitutionally protected.”193 If the Court was willing to
adopt a rule to protect the expectation of privacy of
communication in a telephone booth, the Court certainly should
be willing to protect the information and communication stored
and transmitted on cell phones.
Likewise, in Kyllo, where the government utilized a thermal
imaging device, the Court enunciated a new rule to address
technological advancements.194 In Kyllo, a federal agent grew
suspicious of Danny Kyllo, believing he was growing marijuana
in his home by using high intensity lamps.195 To determine if this
was in fact the case, agents positioned their vehicle around
Kyllo’s home and used a thermal imager to scan his residence.196
The scan revealed that the roof of the garage and a side wall of
the home were substantially warmer than the rest of the home
and the surrounding homes.197 Based on the thermal imaging
scan, tips from informants, and utility bills, the agents obtained
a search warrant of Kyllo’s residence.198 In its analysis, the Court
stated “[i]t would be foolish to contend that the degree of privacy
secured to citizens by the Fourth Amendment has been entirely
unaffected by the advance of technology.”199 The Court stressed
that the rule they “adopt[ed] must take account of more
sophisticated systems that are already in use or in
development.”200 The Court then articulated a new rule that
“[w]here . . . the Government uses a device that is not in general
public use, to explore details of the home that would previously
have been unknowable without physical intrusion, the
surveillance is a ‘search’ and is presumptively unreasonable
192.
193.
194.
195.
196.
197.
198.
199.
200.
832
Id. at 352.
Id. at 351–52.
Kyllo v. United States, 533 U.S. 27 (2001).
Id. at 29.
Id. at 30.
Id.
Id.
Id. at 33–34.
Id. at 36.
2012]
Cell Phone Searches
without a warrant.”201 The Court expressed a concern for
technology eroding the privacy guaranteed by the Fourth
Amendment by assuring that the new rule would preserve the
same “degree of privacy against government that existed when
the Fourth Amendment was adopted.”202 Again, where current
law did not adequately address technological advancements that
threatened Fourth Amendment rights, the Court adapted the law
to fit the technology available.
Continuing the trend, the Court’s recent unanimous decision
in United States v. Jones further illustrates the Court’s adamant
protection of the Fourth Amendment against invasive
technology.203 In Jones, the defendant was the target of an
investigation for trafficking narcotics.204 Without a valid warrant,
officers attached a Global Positioning System (GPS) to the
undercarriage of a vehicle registered to Jones’s wife while parked
in a public parking lot.205 The device was used to track the
vehicle’s movements over the next twenty-eight days and was
able to determine the vehicle’s location within fifty to one
hundred feet.206 The GPS ultimately transmitted more than
2,000 pages of data.207 Consequently, Jones was charged with
conspiracy to distribute and possession with intent to distribute
five kilograms or more of cocaine and fifty grams or more of
cocaine base.208 The Court held that the installation of the GPS
device on the Jones’s vehicle and the use of the GPS to monitor
the automobile’s movements constituted a search.209 The Court
defended its decision stating that what they applied was a
“guarantee against unreasonable searches, which we believe
must provide at a minimum the degree of protection it afforded
201.
202.
203.
204.
205.
Id. at 40.
Id. at 34.
565 U.S. ___, ___, 132 S. Ct. 945, 948 (2012).
Id. at ___, 132 S. Ct. at 947.
Id. (finding the warrant was invalid because it only authorized the
installation of the GPS in the District of Columbia within ten days of being
issued while the device was not attached until the eleventh day in Maryland).
206. Id.
207. Id.
208. Id.
209. Id.
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CHARLESTON LAW REVIEW
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when it was adopted.”210 The Court also reaffirmed the
proposition that Katz did not repudiate or replace the common
law trespassory test but rather added the reasonable expectation
of privacy test to Fourth Amendment analysis.211 The Court
determined that by attaching the GPS to Jones’s vehicle, officers
encroached on an area protected by the Fourth Amendment.212
Jones further stands for the proposition that the principle
apparent in both Katz and Kyllo—that the Court stands ready to
protect the rights guaranteed by the Fourth Amendment from
developing technology—remains present in today’s Court.
This trend, beginning in 1967 and continuing into 2012,
clearly demonstrates that the Court is not afraid of addressing
new technology and will correct the law to adapt to technology
that threatens to erode Fourth Amendment protections. This
principle is particularly pertinent to cell phones. Modern cell
phones have been described as “hidden gold mine[s] of personal
information . . . . that essentially [are] subjective picture[s] of our
habits, our friends, our interests and activities.”213 As stated by
the Seventh Circuit, a “modern cell phone is a computer.”214
Nearly all cell phones provide voice and text messaging, cameras
capable of taking photographs and videos that can be sent to
other devices, and personal information management
applications, such as phonebooks and calendars, with the ability
to synchronize that data with a desktop.215 More advanced
phonesoften referred to as smart phoneshave the capacity to
send multimedia messages, surf the Internet, interact on social
networking sites, store and display electronic books, record notes,
send personal reminders, and locate and give directions to the
210.
211.
212.
213.
Id. at ___, 132 S. Ct. at 953.
Id. at ___, 132 S. Ct. at 955.
Id. at ___, 132 S. Ct. at 952.
Hilary Hylton, What Your Cell Phone Knows About You, TIME.COM
(Aug. 15, 2007), http://www.time.com/time/health/article/0,8599,1653267,00.
html (internal quotation marks omitted).
214. United States v. Flores-Lopez, 670 F.3d 803, 804 (7th Cir. 2012). See
JANSEN & AYERS, supra note 13, at 8.
215. Flores-Lopez, 670 F.3d at 806 (pointing out that even the most basic
modern cell phone has a camera, text messaging, voicemail, mobile access, call
waiting, a voice recorder and a phonebook that can hold 1000 entries). See
JANSEN & AYERS, supra note 13, at 8.
834
2012]
Cell Phone Searches
user.216 Smart phones can also make working out of the office
effortless with their capacity to send and receive email, view
email attachments and other electronic documents, store and
download PDF documents, check bank accounts, transfer money
between accounts, and process dictation of memos or letters.217
The modern cell phone has evolved from a mere device allowing
instantaneous voice communication to one capable of managing
all of our affairs. Their vast array of capabilities makes cell
phones adept at storing information akin to what can be found in
one’s home or office. If homes and offices are not containers of
information,218 then why are cell phones?
At least one court recognized the distinctness of cell phone
technology.219 In United States v. Flores-Lopez, Judge Posner,
writing for the Seventh Circuit, emphasized the uniqueness of
cell phones and other technologies affecting cell phone data.220
The court began its discussion by noting that “a modern cell
phone is a computer.”221 The Seventh Circuit further reasoned
that the potential invasion of privacy is greater for cell phone
searches than for “conventional” containers, even when the
container is a purse containing an address book.222 The court
pointed out, as a general matter, that “[j]udges are becoming
aware that a computer (and remember that a modern cell phone
216. JANSEN & AYERS, supra note 13, at 9-10; Apps: Part 1, supra note 117;
Apps: Part 2, supra note 117.
217. JANSEN & AYERS, supra note 13, at 10; Apps: Part 1, supra note 117;
Apps: Part 2, supra note 117.
218. Flores-Lopez, 670 F.3d at 806 (noting that a search of a home is not a
search of a container “in any normal sense of that word,” despite the fact that a
house contains data).
219. See Flores-Lopez, 670 F.3d 803 (Officers searched the defendant’s
person and truck after arresting him for the sale of methamphetamine. Three
cell phones were found and searched for their telephone number, which was
later used to subpoena the cell phone company for the phones’ call histories).
220. Id. The court discussed the availability of stun guns that resemble cell
phones, remote wiping functions, self-hacking applications altering the
capabilities of the phone, and “Faraday bags” which isolate the cell phone from
the phone network, Bluetooth, and wireless Internet signals. Id. at 806–09. The
court further discussed a cell phone application permitting users to access their
home computer’s webcam to view the inside of their home while being
thousands of miles away. Id. at 806.
221. Id. at 804.
222. Id. at 805.
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is a computer) is not just another purse or address book.”223
Clearly courts are beginning to recognize that cell phones are not
like ordinary containers but are entirely unique devices.
In response to the danger of losing evidence, the Seventh
Circuit also discussed remote wipe technology but determined
that such programs are not a danger once the cell phone is seized
and powered off.224 Despite this seemingly advanced analysis and
indication that the court would recognize a cell phone as a wholly
unique device, the court concluded that because the officers
limited their search of the cell phone to discovering only the cell
phone’s telephone number, the warrantless search was
permissible.225 The court left the issue of a more extensive search
for another day.226
Technology has completely transformed the data stored
within, and thus, the expectation of privacy in cell phones.227 As
seen in Katz, Kyllo, and now Jones, the Court stands ready to
change its analysis to fit technology in an effort to protect Fourth
Amendment rights. There is not a more fitting scenario than that
of the SILA exception’s application to cell phones. Just as
communication behind the closed door of a telephone booth is
constitutionally protected, so too should the data stored in one’s
cell phone be protected. It is time for courts to abolish the
outdated container analogy and follow the purposes of the
exception that Chimel set forth decades ago to protect
individuals’ Fourth Amendment rights and prevent the SILA
exception from exceeding its bounds.
223.
224.
225.
226.
227.
Id.
Id. at 808–09.
Id. at 810.
Id.
See Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir.
2008) (finding cell phone users have a reasonable expectation of privacy in the
content of their text messages), rev’d on other grounds sub nom. City of Ontario,
Cal. v. Quon, 560 U.S. ___, 130 S. Ct. 2619 (2010); United States v. Finley, 477
F.3d 250, 259 (5th Cir. 2007) (finding a reasonable expectation of privacy in call
records and text messages stored on a cell phone); United States v. McGhee, No.
8:09CR31, 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (concluding
defendant had a reasonable expectation of privacy in the contents of his cell
phone because of the vast amount of information stored that was expected to be
free from intrusion by the public and the government).
836
2012]
Cell Phone Searches
XII. CONCLUSION
A long line of SILA exception precedent has led courts to
analogizing cell phones to containers while ignoring the obvious
discrepancies and Supreme Court jurisprudence setting forth the
parameters of the exception. While Gant has yet to be the
solution amongst courts as to how the SILA exception applies to
cell phones, a close look at the Gant Court’s reasoning points to
the correct analysis in SILA cases and to the flaws in lower
courts’ rationales for justifying warrantless cell phone searches.
As stated in Gant, “the doctrine of stare decisis is of course
‘essential to the respect accorded to the judgments of the Court
and to the stability of the law,’ but it does not compel us to follow
a past decision when its rationale no longer withstands ‘careful
analysis.’”228 While the container analogy has been utilized for
some time, it should not be followed as its “rationale no longer
withstands ‘careful analysis.’”229
Based on lower courts’ inability to resolve the issue, even
after the Supreme Court’s guidance in Gant, it is likely the Court
will be forced to readdress the issue. The Court in Gant decided
that an entire category of searches was an unconstitutional
invasion of privacy and overturned decades of precedent to
outlaw those searches. In Katz, Kyllo, and Jones, the Court
created new rules to address advances in technology and protect
Fourth Amendment rights. Accordingly, there seems to be little
doubt that the Court similarly would decide that the container
analogy is no longer fitting and adopt a rule requiring strict
adherence to Chimel’s two rationales to prohibit the warrantless
search of cell phones pursuant to the SILA exception.
228. Arizona v. Gant, 556 U.S. ___, ___, 129 S. Ct. 1710, 1722 (2009)
(quoting Lawrence v. Texas, 593 U.S. 558, 577 (2003)).
229. Id.
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