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Remedies
West Virginia University School of Law
Roberts, Caprice L.

REMEDIES OUTLINE—SPRING 2008

n A remedy is the means by which rights are enforced or the violation of rights is prevented, redressed, or compensated.
n There are four types of remedies: coercive remedies, damages, restitution, and declaratory relief.
o Coercive remedies: injunctions and specific relief. Like all equitable remedies, these are subject to the equitable defenses, including unclean hands, laches, estoppel, election of remedies, and unconscionability.
§ These remedies are called coercive because they are backed by the contempt power.
§ These extraordinary remedies are subordinated by remedies at law whereby legal remedies are preferred over equitable orders unless the remedy at law is deemed inadequate.
o Damages; once the plaintiff has established the claim in substantive law and the entitlement to a particular kind of damages, the problem of measurement remains.
§ The common law requires that these not be too remote, speculative, or uncertain.
§ The goal of damage law is compensation. The only exception is punitive damages, which function to punish or deter wrongdoers in cases of egregious conduct.
o Restitution: this is to restore the property to its rightful owner or to disgorge from a defendant any unjust enrichment occasioned by the wrong to the plaintiff.
§ The measurement for restitution is the defendant’s gain rather than the plaintiff’s loss.
§ The law of restitution prevents the intentional wrongdoer from profiting from the wrong. The plaintiff may receive more than was lost in the original embezzlement.
o Declaratory remedy: This is to obtain a declaration of the rights or legal relations between the parties. There must be a justiciable controversy rather than one of hypothetical or advisory nature.
n Litigants are affected by two other notable issues related to remedies: the right to a jury trial and the availability of attorneys’ fees.
o The right to a jury trial: This is governed by the 7th amendment. Jury trials are guaranteed in actions “at law.”
o Attorney’s fees: These are awarded as costs of a suit. They are not recoverable in most claims. There are both common law and statutory exceptions.

THE NATURE OF LEGAL DAMAGES

Gavcus v. Potts
In this case, Potts trespassed onto Gavcus’s property and took her gold coins. She won the coins back, and is the winner is the sense of feeling and liking the outcome. The present case is an appeal of the defendants because the trial jury awarded Gavcus the cost of locks and attorney’s fees, as well as punitive damages on a special verdict.
The appellate decided that Gavcus’s case did not merit compensatory and punitive damages, but allowed nominal damages for the trespass and unlawful removal. If damages are a piece of the cause of action and you cannot prove them, you have not proven your case of action. Proving damages is a requirement in negligence cases.
n Compensatory damages are awarded for actual or substantive injury. These damages are generally measured by the cost of restoring the property to its former condition or by the change in value before and after trespass.
n Consequential damages can be recovered for a trespass, since a trespass is liable in damages for all injuries flowing from his trespass, which are the natural and proximate result of it. The plaintiff’s failure here to prove the nature, extent, and cause of her distress prevents here from recovering these damages.
n Nominal damages can be awarded when no actual or substantial injury has been alleged or proven—the law infers some damage from unlawful entry.
> For some states there is a bright line rule that without compensatory damages, there can be no punitive damages.

PROOF OF THE EXISTENCE OF DAMAGES
Dura Pharmaceuticals, Inc. v. Broudo
This is a securities fraud case. The plaintiffs complain that the defendants artificially inflated the price of the stocks. The defendant says it inflated the stock prices in the offering, and the plaintiffs allegedly overpaid and the plaintiffs did lose some money. The Ninth Circuit found a valid cause of action, claiming that the plaintiffs established loss causation if they have shown that the price of the stock on the date of purchase was inflated because of misrepresentation.
The Supreme Court reverses, claiming that for a cause of action, the plaintiff must prove both misrepresentation and loss causation. The plaintiffs before the Court have not yet shown adequate causation.
n Common law requires the plaintiff to show not only that had he known the truth he would not have acted, but also that he suffered actual economic loss.
n Plaintiff must prove proximate causation and economic loss.
n Plaintiff must plead with particularity and adequately allege damages in the complaint.
The corporation did make some misrepresentations, but this was not enough to cause it to act unlawfully.

Does anyone think they should be able to move forward? Any uncertainty can make an investor very wary. If a lot of companies make misstatements, this may lead to people not investing.
But, there is the flipside about letting corporations being sued all the time. This could mean a lot of unmerited discovery, which will lead to looking for smoking guns. The purpose is not to provide broad insurance to people, but to lead to recovery for loss causation for misrepresentation.

The tort of misrepresentation—no damages, no cause of action.
Threatened future harm

sely their health and medical condition because of the exposure to pollution.
o A financial injury is simply not a present physical injury.
o The court is worried about draining defendant’s financial resources. The majority, in particular, fears who will be able to bring these suits.

The dissent in Henry—we ought to have preventative issues here. There may be better to have check-ups yearly to make sure that the dioxin is not affecting you.
The problem is happening. It reframes the issue. It becomes an issue of plaintiff, defendant, and taxpayer. Whether the court should be playing this role.
The medical monitoring issues may actually lower the costs. A lot of the people in the area really did not want to bring a claim because Dow runs the company. The preventative care will lower the costs overall.

How do you draw the line as to who should be allowed the medical monitoring? Does it matter how long how long a plaintiff has lived in the area of the dioxin exposure? The court will hope that this is dealt with common sense.
Does someone who lived there for a day, would the plaintiff want to get a lot of medical examinations?

Norfolk and Western Railway Co. v. Ayers
Former railroad employees brought suit under the Federal Employers’ Liability Act, alleging that the railroad negligently exposed them to asbestos and thereby caused them to contract asbestosis. They are suing for pain and suffering notion of fear of cancer, which they do not have yet. They have some type of physical injury and attendant to that, there is an increased likelihood of developing the disease. The WV SC affirmed the judge, granting favor to the plaintiffs, and the Supreme Court granted certiorari.
Mental anguish damages, resulting from the fear of developing cancer, may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related asbestos exposure. Although a plaintiff who has asbestosis but not cancer can recover damages for fear of cancer under FELA without proof of physical manifestations of he claimed emotional distress, the plaintiff MUST prove that his alleged fear is genuine and serious.