Name the Harm: Betrayal Aversion and Jury Damage Awards in Safety Product Liability Cases
Norman, Jim, The Review of Litigation
I. Betrayal Aversion Explained 527
A. The Basics of Betrayal Aversion 527
B. Betrayal Risk Aversion vs. Betrayal Aversion 528
C. Do Objects Betray? 530
D. Why Are People Averse to Betrayal? 531
II. Betrayal Aversion and Jury Damage Awards 534
A. Punitive Damage Awards 534
?. Compensatory Damage A wards 538
III. Should Juries Award Higher Damages for Betrayal? 543
A. Punitive Damages 543
B. Compensatory Damages 549
IV. Prescription: Name the Harm 550
V. Conclusion 552
"Every patient you are seeing you have in the back of your mind whether the device is causing them harm."1 The "device" is an implanted heart defibrillator.2 A physician who was researching problems caused by the device's wires protruding through their protective coating made the statement in the spring of 2012. These wires connect the defibrillator to the heart, and the maker of the device had received reports about the problem since 2010.4 Even with this knowledge, however, the manufacturer only last November alerted doctors to the problem.5 Unfortunately, the faulty wiring may have contributed to the death of twenty patients. One reads the above narrative and thinks, how would this look in front of a jury? 6
Imagine that you are a patient with the defibrillator. Imagine that you hope to get another decade or two out of life, to see your children get established, maybe even see your grandkids come along. You have seen the best doctors. You have traveled to a medical center of excellence. Everyone recommends the surgery, and you get the device installed. You trust the doctors and the defibrillator. What if the device did not just fail to save you, but killed you?
This Note addresses how plaintiffs and juries deal with situations that include betrayal. Betrayal, it will be shown, is an especially salient aspect of harm: when someone has placed his or her trust in a person or product and is subsequently harmed, the emotional impact of the injury is particularly strong. Research into how people react to betrayal strongly suggests that jurors in negligence cases award higher damages for acts of betrayal than for acts that do not involve betrayal. If this is true, is it appropriate? Do damages for betrayal have a place in the civil justice system? If so, is there a better way to address them than the current ad hoc approach?
Part I of this Note describes the psychological research into the phenomenon known as betrayal aversion. Betrayal aversion is the strong emotional reaction people have to broken trust and broken promises. Betrayals by non-human objects-for example, safety products like our implanted defibrillator-can make people angry, just as betrayal by humans can. Part I will conclude by considering some possible causes of betrayal aversion.
Part II looks more closely at research that shows mock jurors give increased damage awards in hypothetical betrayal scenarios, and establishes the likelihood that actual juries award higher damages in response to betrayals. Part III considers whether awarding higher damages is an appropriate response to acts of betrayal. Both punitive and compensatory damages are analyzed as possible approaches, and both are found to be acceptable. However, it may be preferable from a law and economics perspective to include betrayal aversion damages only in the compensatory award. In Part IV a more rational approach called "name the harm" is considered.
I. Betrayal Aversion Explained
A. The Basics of Betrayal Aversion
Before there can be a betrayal, there must first be a relationship that involves trust. Betrayal aversion researchers identify three components of trust: (1) a dependency among the parties in a relationship, (2) the vulnerability of at least one of the parties involved, and (3) the confident expectation that the trusted party will act as believed.7 A betrayal is the violation of that confident expectation. …