Saturday, March 26, 2005

Condom Conundrum

Scary: A condom distribution company has just recalled an entire brand of condoms based on evidence they won’t work properly.
The Oak Park, Mich., company [Harmony Brands] said Friday it is recalling Lover brand latex condoms and B-Sure brand one-step home pregnancy test kits. Both products were sold nationally in various retail outlets including dollar stores and convenience stores.

Harmony Brands said consumers who have these unused products should return them to the place of purchase for a refund. The company said it has not received any consumer reports of failure of the products but was initiating the recall because the Food and Drug Administration said the safety and efficacy of the items could not be assured.
This raises some interesting questions of law and economics. Suppose a woman were able to demonstrate that she became pregnant due to a defective condom. Under a theory of product liability, she sues the condom manufacturer for the entire cost of raising a child to the age of 18 and sending him to college. Should she prevail? Consider two competing doctrines of tort law:

Duty to Mitigate Damages. If someone does you harm, you have a duty to take reasonable steps to reduce the damage or prevent it from increasing. For instance, if someone causes you to break your arm, you should go to the hospital and get it set. If you fail to do so, the other party shouldn’t be held liable for the avoidable portion of the damage. Economically, this rule makes sense because it gives both parties the incentive to take cost-justified measures to minimize harm.

Now, apply the doctrine to this case. Yes, the condom was (at least partially) responsible for the pregnancy. But that pregnancy needn’t result in 18 years of expense, because having an abortion will reduce the harm to the cost of the procedure plus pain/suffering for the woman. So, if the woman chooses to have the child anyway, should the duty to mitigate damages limit the condom manufacturer’s liability to the costs associated with having an abortion? Why or why not?

The Thin-Skull Rule. This rule says that a tortfeasor (someone who wrongfully causes harm to another) must take the victim “as he finds her.” If it just happens that the victim is especially vulnerable – say, because she had an eggshell skull that was especially easy to crack – then so be it; the tortfeasor is still responsible for the full damages. This rule makes economic sense, because the existence of extra-vulnerable people is a fact of the world that must be taken into account by those producing products or taking other risks; their existence increases the benefit of taking precautions.

Perhaps this rule, or rather the abstract principle it embodies, provides a response to the abortion argument above. For whatever reason, some people have a strong moral principle that prevents them from having abortions. For these people, pregnancy implies childbirth (absent a natural miscarriage), and therefore 18 years of expense follow directly from the defective condom. The condom manufacturer must take these customers as it finds them, without expecting them to change their moral codes. So, if a woman impregnated as a result of a defective condom chooses not to have an abortion, should the thin-skull principle imply that the condom manufacturer is liable for the entire cost of raising the child?

How should the courts approach the hypothetical case I’ve described? (Not how would they, but how should they.) And what legal rule would give people the best economic incentives? I will update this post later with my thoughts on the matter, although I’ll admit right now that I don’t have a satisfying answer.

Let me anticipate two possible responses. First, assume that abortion is a legal option, so we can take that issue off the table as much as possible. Second, it’s worth noting that even the best condoms have a failure rate, and anyone using a condom should know that. Okay, but in this case, the condoms have a higher-than-advertised failure rate, and the advertised rate induced some degree of reliance by the customer. Still, the customer did assume some risk by choosing to have sex at all. So let’s suppose a court decides, under a theory of comparative negligence, that the parents are responsible for one-half of the damages, and the condom manufacturer is responsible for the other half. The question remains: one-half of what? The entire cost of raising the child to 18, or just the cost of an abortion?

UPDATE: As promised, here’s my take. I wouldn’t give the thin-skull rule much weight here, because I don’t think people’s moral beliefs ought to be treated as “pre-existing conditions” that cannot be helped. You choose your moral beliefs, and if your moral beliefs cause you greater expense, that’s your problem. In addition, as JB mentioned in the comments, it’s not really true that 18 years of expense follow from getting pregnant and forgoing abortion, because you can give a child up for adoption. If the mother can avoid paying to raise the child, then the duty to mitigate damages at least shields the manufacturer from that portion of the cost. Still, I think the manufacturer’s error ought to make it liable for something; and it’s foreseeable that, for many women, childbirth will be a lower-cost option than abortion once psychic costs are taken into account. So I’m inclined to support JB’s suggested compromise: the manufacturer should be held liable for the pregnancy & childbirth or abortion (whichever the mother chooses, and including lost wages) and nothing more. However, I admit the ad hoc quality of this recommendation troubles me.


Anonymous said...

I'm not sure either as to the liability, but I do know a posssible name thanks to you: The Thin-Skin Rule! Probably the monetary damages should exceed just the costs of an abortion to pay her for childbearing too, but should fall far short of full indemnification. For one thing, she can give the baby up for adoption; if she decides she wants the baby after all then that's her decision which, I think, includes her bearing the costs of childrearing. One more point, suppose that the woman can't afford to raise the child, then who should foot the bill? Should the taxpayers be stuck paying to raise the child when the blame should really lay at the feet of the Condor Karmic Cosmic Calypso Calisthenic Kaleidoscopic Candy-Flavoured Condom Co. (please forgive the fancy alliteration but Lover brand is such a bland name)?

JB said...

While, my personal opinion comes out suggesting that the incumbent risk of pregnancy in any opposite-sex sex act and as such the condom manufacturer could not be held liable for failure (basically a contributory negligence theory). I think actually a good compromise is the cost of a complete pregnancy, whatever that is in possibly lost wages etc. but then if the child is truly not "wanted," the child could be put up for adoption or some other arrangement, effectively post-birth cost are still the parents. Both parents...but the pre-birth costs could be the partial or complete responsibility of the manufacturer, allow I imagine the testimony could be quite interesting..."How rough would you say you were on the condom...?"

Also, FWIW, contributory negligence is a principle which would defeat the plaintiff's claim completely. Comparative negligence is the legal doctrine that allows 50-50 type splits.

Glen Whitman said...

D'oh! I did mean to say comparative, not contributory. I've corrected the error now.

A defense of contributory negligence must do more than establish that the plaintiff created some amount of risk -- it must show the plaintiff took less care than she should have. Otherwise, it would rule out almost any claim of product liability, because the plaintiff could always avoid the risk by simply not using the product or not engaging in the activity. E.g., auto manufacturers could avoid liability for defects in car design by saying customers chose to drive, which is inherently risky.

JB said...

defense of contributory negligence must do more than establish that the plaintiff created some amount of risk -- it must show the plaintiff took less care than she should have.

Right, Right, I agree. One of the things in this area (contributory and comparative negligence) is that a lot has gotten jumbled together. And I was not precise at all.

Specifically, I was merely tossing out a reference to the theory of Primary Assumption of Risk which in the sports context provides that generally injuries caused by one player are not compensable injuries because there is no duty to the other individual, people avoid injuries sure, but if they happen, well that's a part of sports. The risk of injury is assumed and acts as a complete bar to recovery.

This is like contributory negligence in that it acts as a complete bar, but I concede the two theories are very different theories and I was imprecise. However, it was not my intent to discuss that as I thought it probably not what you were really looking for.

The half I was thinking that would be a good fit was the cost of pregnancy.

Anonymous said...

A bad condom is sort of like a failing parachute if you get AIDS as a result. Are condoms designed for different sex acts such as vaginal sex vs. anal sex? What about the temperature conditions--having sex outdoors in the artic at 30 below? The rubber in the rubber might crack! Just where does personal responsibility enter into the equation? If you're having anal sex with a promiscuous infectious eskimo in an igloo aren't you asking for it? Enquiring sick minds want to know!

Anonymous said...

I alway get comparative advantage mixed up with competitive advantage. Now I don't feel so bad!

If you believe in sex for pleasure not procreation, it serves you right for getting pregnant. As Glen intimated in another post, sex is nasty and sinful; you only do it if you HAVE too! Don't blame your rubber, blame your mother for not teaching you to be a good girl who can keep her legs shut. You slutty wenches know who you are!! How many gold diggers out there in la-la land will seek to take advantange of poor Lover's defective condoms by blaming their "unwanted" pregnancy on the condom manufacturer. A year supply of diapers maybe but beyond that you're going get the shaft were it really hurts, I tell you! We must conclude therefore that only bad girls get pregnant without meaning too and therefore this boloney about being morally opposed to abortion is nonsense. What is that legal adage about having clean hands when you come to court? No unkempt two-bit trollop can claim to have clean hands no matter how many times she scrubs them. For one last time to make sure you get my point: Bad girls have abortions and good ones don't! Bad boys get AIDS and good ones don't! Vengeance is mine!!!!!!


Anonymous said...

WTF- I am a married mother of 4. I do not believ in abortion, due to the obvious, including harm to my own body, I dont see guys volunteering to have a rusty coat hanger scrape out their tetes. If I am paying for a product, and it fAILS SOMETHING AS IMPORTANT AS THAT, NO WAY AM i GIVING THE BABY AWAY, OR COMMITING MURDER. tHEY CAN PAY TIGHT THROUGH GRAD SCHOOL! p.s. YOU ARE AN INSENSITIVE PEICE OF SH*T!

jesslyn said...

Men should have no right to discuss womens issues, seeing as you don't really care about more than your wallett. Condom companies should be responsible for their errors. We rely on them. Not everyone who gets pregnant unexpectedly is a bad person, but some couples use condoms until finances are stronger, before choosing to become pregnant.
Don't be such asshole law student know it all pigs. Get an education. Get to know and care about a woman, or a child. It is expensive hard work. No one should be forced to kill her baby, or give it away, because some asshole corporate white male compaany forced her to have it before she was ready.