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University of Mississippi School of Law
Hoffheimer, Michael

REMEDIES – Hoffheimer – Fall 2011
1)       Types
a)       Damages
i)         Compensatory
(1)     Expectation value
ii)       Punitive
b)       Preventative Remedies
i)         Coercive
(1)     Injunctions
ii)       Declaratory Judgments
c)       Restitution
d)       Ancillary Remedies
i)         Attorney’s fees
(1)     Generally, noà not actually restored to rightful position
ii)       Transactional fees incurred?
2)       Basic Idea: restore to “rightful position”
a)       àWhat position would the π be in but for the wrong?
i)         No double recoveryà “Elect” a remedy
b)       Value usually the measure of rightful position
i)         FMV – objective
3)       History
a)       Law vs. Equity
i)         Who decides? Judge or jury?
(1)     7th Am. Reserves right to trial by jury as it exists at CL
(a)     CLàDamagesàJury Trial?
(2)     MS Const. art. 31
ii)       Law
(1)     Extraordinary Writs – no jury, no money damages, discretionary to some extent
(a)     Habeas corpus
(b)     Prohibition
(c)     Mandamus
(i)       Requirement for Prohibition/Mandamus: you’re asking the court to make someone within the court’s supervisory j/d do something (or not)
(ii)     Must be something they have the ministerial duty to do (non-discretionary function)
1.       Example: ordering court clerk to accept pleadings
(d)     Quo warranto
(e)     Certiorari
(i)       àthese show that not everything at CL is money damages… and not all COAs required a jury trial
(2)     De Cursu – this is what you would bring for a tort or K claim
(a)     Debt
(b)     Covenant
(c)     Replevin
(d)     Trespass
(e)     Case
(i)       Remedies: they’re sort of automatic…
iii)      Equity àno adequate remedy at law
(1)     Judge decides
(2)     Specific performance
(3)     Injunctions
(a)     Like to enjoin a tort (distinction from extraordinary writs)
(4)     Uses or trusts: rights of beneficiaries
iv)     Mississippi allows chancellors to hear claims for legal relief that are ancillary to claims for equitable relief and vice versa
a)       Tort damages restore to past condition; K damages intend to compensate for expectancy interest (future condition)
i)         Π is a competent witness as to value of property
ii)       Damages = Substitutionary Relief
b)       Cooper v. Federal Aviation Admin. – Securities Claim
i)         What are “actual damages?”
(1)     No recovery without proof of some actual damagesàis an element of a claim
ii)      Some circuits say ADs include pecuniary and non-pecuniary losses; others will not allow emotional distress, etc. àlook to intrinsic and extrinsic sources
(1)     Also depends on the statute being interpreted
(2)     Look to actual language, then to legislative intentàlook at statutes that use similar wording/passed around the same time to determine intent
(3)     In this case, because Congress meant for the record-keeping requirements to prevent embarrassment, it seems reasonable that they meant for non-pecuniary damages to be included in the meaning of “any damages”
(a)     “difficult to see how Congress’s state goal of subjecting federal agencies to civil suit for any damages resulting from a willful or intentionally violation of the Act could be fully realized unless the Act encompasses both pecuniary and nonpecuniary injuries”àincludes damages for emotional distress
(b)     “when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other…”àpresumption that Congress intended the text to have the same meaning in both
iii)      What is the meaning of “any damages?”
(1)     “simply because a statute authorizes the recovery of damages to compensate for injuries does not mean that the statute authorizes the recovery of damages for any type of loss”
(2)     In right of privacy cases, the primary damage is the mental distress from having been exposed to public view (the kind of damages/injury that normally results from such an intrusion?)
iv)     Notes
(1)     Torts: corrective justice viewà∆’s money is secondary, for the law vindicates the π’s rights, reprobates the ∆’s misconduct, and restores the “balance” in human relations (Compensation + Deterrence)
(2)     Noncompensatory Money:
(a)     Nominal damages resemble a declaratory judgment
(i)       If π proves no compensatory damages, nominal damages will vindicate her technical right and carry out a corrective justice function
(b)     Recovery of the π’s attorney fees and costs reimburses his litigation expense instead of compensating for his injury
(i)       Privacy Act and many civil-rights statutes allow winning π to recover AFs
(c)     Pain and suffering damages for a π’s personal injuries have another unspoken purpose: they are available to pay the attorney who is working on a contingency fee K
(d)     Mental-emotional distress damages in dignitary torts like trespass to land, false imprisonment, defamation, etc., serve a corrective justice function
v)       SEC. 11-1-60. Limitation on noneconomic damages in medical malpractice actions; definitions.
(1)     (1)  For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a)       (a)  “Noneconomic damages” means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury.  The term “noneconomic damages” shall not include * * * punitive or exemplary damages.
(b)       (b)  “Actual economic damages” means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
(a)     In any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.
(b)       In any civil action filed on or after September 1, 2004, other than those actions described in paragraph (a) of this subsection, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.
(c)     It is the intent of this section to limit all noneconomic damages to the above.
(d)      The trier of fact shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.
(3)      Nothing contained in subsection (1) of this section shall be construed as creating a cause of action or as setting forth elements of or types of damages that are or are not recoverable in any type of cause of action.
vi)     SEC. 11-1-69. Prohibition of hedonic damages in civil actions.
(1)     In any civil action for personal injury there may be a recovery for pain and suffering and loss of enjoyment of life.  However, there shall be no recovery for loss of enjoyment of life as a separate element of damages apart from pain and suffering damages, and there shall be no instruction given to the jury which separates loss of enjoyment of life from pain and suffering.  The determination of the existence and extent of recovery for pain and suffering and loss of enjoyment of life shall be a question for the finder of fact, subject to appellate review, and the monetary value of the pain and suffering and loss of enjoyment of life shall not be made the subject of expert testimony.
(2)      In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.
c)       Proof of the Existence of Damages
i)         Proof required for:
(1)     Negligence
(2)     Breach of Contract
(3)     Fraud
ii)       Damages NOT required for trespass to land, etc.
iii)      Dura Pharmaceutical v. Broudo – Loss Causation
(1)     Private damages action for misrepresentation in publicly traded securities transactions
(a)     There must be an actual economic loss and there must be a causal connection between the misrepresentation and the loss
(2)     Normally, inflated purchase price will not itself constitute or proximately cause the relevant economic loss
(a)     At the moment of the transaction, the π has suffered no loss (the inflated purchase price is offset by ownership of a share that at that instant has equivalent value)
(b)     If the purchaser quickly sells before the relevant truth begins to leak outàmisrepresentation will not have led to any loss
(c)     Alternatively, if purchaser later resells his shares, even at a lower price, that lower price may reflect, not the earlier misrepresentation, but changed economic circumstances (longer time between purchase and saleà more likely to have been caused by other factors)
(i)       So, the misrepresen

very is sharply circumscribed by the zone-of-danger test
(e)     Medical Monitoring: π’s present and future expense of dealing with her future risk comes under the remedial tag of medical monitoring
(ii)     KNOW MS LAW –
(iii)    Although it is neither recovery for increased risk of a serious malady nor recovery for emotional distress, it is related to both:
1.       ∆ has breached a legal duty by releasing harmful substance; π has been exposed and, although lacking present symptoms, has an increased risk of developing a serious disease in the futureàearly detection and attention through medical monitoring will both reduce the π’s ongoing emotional distress and ameliorate the disease’s future onset
a.       A court may use the medical monitoring remedy to require the ∆ to pay for medical attention to facilitate π’s ability to have disease diagnosed and treated promptly
b.       Also, by requiring ∆ to internalize the cost of the danger, MM deters pollution
(iv)   3 Types:
1.       ∆ pays each π a lump sum for future medical attention (legal)
2.       Π’s doctors send bills to ∆
3.       Court-supervised program (equitable – injunction)
a.       When people in the π class are vulnerable and at risk because of the pollution, court orders ∆ to set up a program to examine the πs to detect major health problems early
v)       Rhodes v. Du Pont de Nemours & Co. – Medical Expenses for TESTS
(1)     Basic Issue: πs suffer a loss that ∆ thinks may not qualify as a legal injury, and the equitable remedy πs seek would require the ∆ to pay money
(2)     Π’s alleged significantly increased risk of future disease constitutes an injury-in-fact under Article III
(a)     “fairly traceable” standard for causation for STANDING inquiries is less stringent than the standard for tort causation
(3)     COA for MM where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of the ∆’s tortious conduct
(4)     Criticisms of MM:
(a)     Uncertainty among medical professionals about which tests are most usefully administered and when (hard for courts to determine award)
(b)     Possible flood of less important cases
(c)     Vast testing liability adversely affecting allocation of scarce medical resources
(d)     A traditional, full-blown ordinary tort liability rule would ignore the presence of existing alternative sources of payment, such as π’s employers or insurance coverage
(5)     What about the Injury Requirement?
(a)     Some courts say that there must be an actual, present injury and that there can be no recovery of damages that are “wholly derivative of a possible, future injury”
1.       MS rejects MM claims for asymptomatic πs
(ii)     Defines more clearly who actually has a COA
(iii)    Reduces fraud by setting a clear minimum threshold
(iv)   Avoids compromising the judicial power by leaving such questions to the legislature (getting rid of injury requirement would involve extensive fact-finding and the weighting of numerous and conflicting policy concerns)
(b)     Other courts apply the relaxed injury requirement of MM claims to the underlying tortà all elements of an existing theory of tort liability (neg. for example), EXCEPT for the injury requirement, must be met for MM liability to arise
(i)      Injury requirement is met by negligent invasion of the π’s interest in  avoiding expensive diagnostic examinations
1.       àan exposure to a harmful substance and the concomitant need for medical testing constitute the injury
2.       Emphasis on whether the ∆ has breached a duty that could cause harm – NOT on whether the conduct actually results in present or “reasonably certain” future harm
a.       Fitting because under MM, a π is not recovering for present injury or even, directly, for future injury, but for the need for MM