Connecticut attorney Irv Pinsky has filed a $100 million claim against Connecticut, on behalf of an anonymous mother of a 6-year old survivor of the Sandy Hook High School, for “emotional and psychological trauma and injury, the nature and extent of which are yet to be determined.” Comments sections around the internet are already filling up with sneering attacks on the crassness of it, the exploitation of it, the greed of the lawyers and sometimes even the greed of the family – but, what else is new? People hate lawyers, especially personal injury lawyers, and people hate so much as the appearance of profiteering off of tragedy, usually perfectly commensurate with their misunderstanding or lack of discernment about the issue at hand. This is just such a case. The two issues relevant here are why it is such a good thing for society that people are able to file lawsuits such as this (regardless of any appearance of crass enterpreneurialism on the part of lawyers), and the relative strength or weakness of the present action.

It is a good thing that people are allowed to sue parties who seem to be only distantly related to tragedies shortly after those tragedies because society should permit economic weapons to be used to incentivize increased care by those parties. In this case, the defendant entity is the one that we hold far and away to the highest standard of any group in our society – the state. It is the party that profits off of our hard work through taxes, that we trust to pool social risks and to protect against foreign invaders, that we empower to delineate the contours of our duties and freedoms, and that we (usually rightly) blame first when something goes wrong. It should be easy to file suit, if not win suit, against the state, because we want juries and judges to have as many opportunities as possible to punish the state, through both the economic damage and the public shaming ritual of losing a lawsuit, for failing to live up to our very high expectations for it. If a competent court or the duly chosen members of a jury decide that the state has failed in its charge, then it deserves to be punished just as much as anybody else. And since the state plays such an integral role in protecting, controlling, and managing our lives, it owes us a corresponding level of access to its own goings-on, and access to the courts is our most useful kind of access perhaps second only to access to legislatures.

But we also want judges and juries to be able to say that what is perceived to be a failure by the state is actually an unjust assignment of blame. Not long after the attack, the state was accused of a litany of failures: failure to regulate firearms, failure to screen out potentially violent or mentally ill children (that everyone blamed the state for failing to discriminate against the mentally ill without any clear evidence of mental illness in the shooter is a disgusting feature of our discourse about the Sandy Hook tragedy, but perhaps that is best left for another day). For the same reasons that we want it to be easy to blame the state for its failures, we want to be able to recognize when the public has unfair expectations of the system.

And, of course, we want parties that have actually been wronged to be made whole by compensatory damages and to deter their trespassers by punitive damages.

But as to the present case, laudatory as I have been for the right of lawyers to file such suits, this particular suit is of questionable merit. If I read the news articles correctly, Attorney Pinsky has chosen a particularly difficult theory to prove – negligent infliction of emotional distress. I won’t get into the details of it, because 1) it has several ins and outs and 2) those ins and outs vary by state and Connecticut is not my home turf, but to truncate the analysis considerably, showing NIED requires showing that the defendant, through either negligent action or inaction, caused the plaintiff to suffer a “sensory and contemporaneous” emotional shock that objectively harmed the plaintiff. There’s a lot of qualifiers there, and they all stack up against the plaintiff.

When you read Pinsky’s comments, you see that his case is doubly difficult because his chosen nexus is not the shooting itself, but specifically the broadcast over the loudspeakers of the initial shooting in the Sandy Hook Elementary lobby office. So instead of proving that the entirety of the attack caused emotional harm to the anonymous child, Pinsky must convince either a judge or a jury that:

the state could reasonably foresee, or should have reasonably foreseen, that, during a school shooting, someone would turn on the overhead loudspeakers to warn others in the school,

there were reasonable steps the state could have taken to mitigate the harms caused by the element above or to prevent them entirely,

that the elements above caused the plaintiff’s child to suffer serious objective harms (say, stress-induced digestive problems, diagnosable depression or PTSD, not merely “feeling sad” or “being scared”) because of a sensory experience contemporaneous with the results of the defendant’s negligence.

In short, good luck, Attorney Pinsky.

As an aside, there are certain strategic aspects to this case that you should know are standard tools of the trade. Specifically, the $100 million damages sought. Even if the anonymous child in this case went out was diagnosed with every emotional disorder from depression to hysterical pregnancy as a known direct result of the shooting, if Pinsky proved every other element of his case, there’s no way in hell that $100 million would pop out of that case. What Pinsky is doing is highballing his figure because he’s hoping to settle for a catastrophically lower sum. The state knows that it would almost certainly win any lawsuit, but Pinsky can save face and look like the reasonable one because he has plenty of space to revise his settlement proposal downwards until he meets something that will probably be slightly higher than his expenses, if the case proceeds at all. When you see a damages figure far out of proportion to any reasonable interpretation of a case, you are seeing the preliminary settlement offer broadcast to the defendant. By starting at $100 million, Pinsky is hoping that he can look reasonable and accommodating when he gets talked down to less than $1 million, because he knows and the state knows that the suit is likely to fail, but less than $1 million is better than nothing.

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Tags: emotional distress, Irv Pinsky, lawsuit, negligence, negligent infliction of emotional distress, Sandy Hook Massacre, settlement