Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to University of Maine School of Law professor Jennifer B. Wriggins, who teaches Torts, Insurance Law, and Family Law. Last year, her book, The Measure of Injury: Race, Gender, and Tort Law, was published by the NYU Press. The interview is as follows:
1. What do you think is the most significant recent development in torts and products liability litigation?
I think that the continuing lack of conceptual clarity about comparative fault is very significant and interesting. What I mean is this: While contributory negligence has been on the wane for decades now there remains, I think, lots of vagueness about how its replacement, comparative fault (comparative negligence), is supposed to work. Statutes and jury instructions are often not at all clear about how the defendant’s action is supposed to be compared to the plaintiff’s action, even when they are engaging in the same activity, like driving. This is particularly the case with multi-party litigation. There is, relatedly, rather little clarity about how to quantify (and thus compare) actions by many different parties that are very different in nature. Yet, comparative fault is widely accepted and generally seen as an important improvement over contributory negligence. There is a huge disconnect, I think, with the everyday way that people think about causation and fault, and the fascinating and unwieldy system we have now with comparative fault and comparative responsibility.
2. What rule or concept in modern torts or products liability jurisprudence do you believe is the most outdated, and why?
One rule that strikes me as possibly outdated is the rule that juries are not allowed to learn about liability insurance policies. Even when a case involves an auto accident, and auto insurance is mandatory in a state (as it is in almost all states), so that jurors who are car-owners (probably most jurors) know that there is likely to be insurance, jurors are not supposed to know about insurance. I understand that it is important for the liability and damages issues not to be affected by the presence or absence of insurance, but I think it is very likely that jurors think about insurance anyway. I would want to think about this more before advocating it, but perhaps we should just give jurors the insurance information and tell them it should be kept separate from the liability and damages determinations. If they are hypothesizing about insurance and taking it into account anyway, then giving them accurate information should not hurt the process. I can see both sides of this, but I think we are probably deluding ourselves if we pretend jurors don’t know and aren’t thinking about the existence of liability insurance.
3. You have written much on the role of race and gender in litigation. In your view, how do these concepts affect tort cases specifically, and what would you advise civil litigators to keep in mind on that front?
One place where race and gender can come into play is damages. In my book, The Measure of Injury: Race, Gender and Tort Law (NYU Press 2010), my co-author Martha Chamallas and I talk about how in cases where an individual lacks an earnings history (for example a child) and suffers an injury that will affect future earnings, experts and courts still use race-based and gender-based earnings tables to project earnings into the future. Many experts and lawyers, I think, simply assume that these categories have to be used and don’t think of them as problematic at all. We argue that this use of tables is deeply problematic and potentially unconstitutional because using the tables in court is in effect a race-based or gender-based classification. Judge Weinstein of the Eastern District of New York issued a ruling in October 2008 that agreed with this position. We also talk about how caps on non-economic damages can affect claims of women, members of racial minorities, and minority women, who may have serious injuries but small lost earnings, making their claims perhaps too small to be worth bringing. Research has suggested this is happening in California and Texas, for example.
BONUS QUESTION: What do you think is the most interesting depiction of the interaction of law and medicine in popular culture, and why?
One of the most insightful depictions of the interaction of law and medicine in popular culture is a book, Damages, by Barry Werth (1998). He deals in a very nuanced way with the interaction of insurance, doctors, patients, and lawyers in a heart-breaking Connecticut infant cerebral palsy case. It’s also a great read.
BIOGRAPHY: Professor Jennifer B. Wriggins, the Sumner T. Bernstein Professor of Law at the University of Maine School of Law, teaches Torts, Insurance Law, and Family Law. Upon receiving her J.D., Professor Wriggins served as Clerk to Hon. Edward T. Gignoux, U.S. District Judge in Portland, Maine. She was a Visiting Professor at Harvard Law School and Boston University School of Law in Spring 2005.