August 16, 2008: Everybody Knows (Res Ipsa Loquitur Edition)

When you attend law school, you take a torts class your first or second semester. Torts, as you may know, addresses civil wrongs that do not arise out of contracts. Let’s say, for example, a beer barrel careens out of a second-story window of a building in downtown Charleston, West Virginia and smashes into someone strolling below on the sidewalk. That’s a tort.

Now you don’t need to borrow $100,000 for student loans for three years of law school to know that a beer barrel crashing out of a second-story window of a building in Charleston, West Virginia and crushing someone is not something you see every day. In fact, you don’t even need to subscribe to The Charleston Daily Mail to know that beer barrels simply don’t roll out of buildings in Charleston--or really anywhere--and seriously injure people. It’s pretty obvious, isn’t it? Well, that’s the concept of res ipsa loquitur, which loosely translated means “the thing speaks for itself.” And in torts, when you hear someone refer to the doctrine of res ipsa loquitur, it usually means that the proof of the case is self-evident because the accident would not occur unless someone were negligent.

I mention res ipsa loquitur here because it serves as an apt illustration that sometimes you do not need any more proof than what you already have. After the jury awarded the Spelter plaintiffs $382 million, Dupont filed its appeal with the West Virginia Supreme Court of Appeals. Then Governor Manchin filed his amicus brief and urged the Court “to clarify whether Dupont has the right to be heard as it appeals the $196.2 million in punitive damages. . . .” Res ipsa loquitur: Governor Manchin’s filing of a brief “to clarify whether Dupont has the right to be heard” constitutes taking sides in the case.

Now this may sound unorthodox, but consider this: We did not actually require additional proof of Manchin’s supporting Dupont beyond his amicus brief, itself. And as insane as this may sound, I do not think The New York Times or anyone really needs to consult an NYU professor of law to tell us that it’s inappropriate for Manchin to be taking this action. Oh, sure, it’s wonderful reporting for the NYT to inform us of any dealings between Manchin and Dupont involving the preparation of his amicus brief, but, truth told, that information does not convey anything that’s going to change the underlying reality--that Manchin took sides here. It’s like that beer barrel that crashes out of that building and smashes into someone on the sidewalk. Discovering later that two dudes getting drunk on tequila while playing ping pong resulted in the beer barrel accident certainly provides a more complete (and interesting) story. But even if you had never learned this information, it would still be completely obvious from the accident, itself, that someone’s negligence caused the beer barrel to injure the person on the sidewalk. Res ipsa loquitur.

But you really have to give Governor Manchin’s spokespeople some serious credit for defending his actions. By denying Manchin’s taking sides in the Spelter case, they’ve manufactured a controversy that, by all accounts, should never have happened. I mean, when I hear someone like Steve Roberts say “that it is not unusual” for a governor to file an amicus brief, I imagine a Charlestonian strolling on a downtown sidewalk with some friends visiting the city for the first time when a giant beer barrel comes careening out of a second-story window and smashes into one of the visitors. The person from Charleston turns to the out-of-towners and then states in his best deadpan voice:

“Happens all the time here.”

But that’s an absolutely ludicrous situation, and we all know that nobody would ever exhibit such chutzpah and say something like that happening is just business as usual in West Virginia.

Right, Joe?