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.