Yes, you read correctly – the title of this blog is Existential Damages and the Future of Expert Testimony.
I’m talking about Italy, not the United States. It may never come to pass here in the new world, but it is a fascinating leap into understanding the impact of misbehavior.
There’s a recent article about a case in Italy where a plaintiff was awarded 80,000 Euro for “injury to the plaintiff’s professionalism and, existential damages.” MOLÉ, N. J. (2013). EXISTENTIAL DAMAGES: The Injury of Precarity Goes to Court. Cultural Anthropology, 28(1), 22–43. Retrieved from http://doi.wiley.com/10.1111/j.1548-1360.2012.01171.x
Without going to go into the factual details, it’s suffice to say that the plaintiff had been demoted, transferred and ultimately fired by his employer with the blessings of his union. He sued under a new Italian cause of action called “mobbing,” which is essentially when:
“the subject in the weakest position is conditioned by or harassed by the dominant-positioned subject.” Citing Article 2087 of Italy’s Civil Code, which holds employers responsible for safeguarding workers physical and moral integrity and their “moral personhood…”
In essence, it can be broadly defined as being unjustly fired, mortified, denied the opportunity to develop “human personhood,” degraded, demoted or a host of other possible indignities that can happen in a hostile work environment.
Under Anglo-American Common Law, this type of tort usually must be accompanied by a physical manifestation within one of several categories, including civil assault or emotional distress, etc. But in Italy, there is no requirement of any sort of physical manifestation, nor must it be premised upon discrimination of a protected class such as gender, race, age, religion or creed.
The cause of action is very different from tortious interference of contract or intentional infliction of emotional distress. The unfamiliar part is this business about “existential damages.”
Here in the United States, there is an apparent clear path for damages that arise directly out of the harm that was done – what was the contract worth? How did the physical manifestation lead to a financial harm? But what about this “moral personhood” concept?
First, presumably, you’d need someone to define what moral personhood means. An linguistics expert witness, perhaps? Maybe a philosopher? Let’s assume that we get past that hurdle. The next issue is how are the damages measured?
In Italy, they’ve come upon the notion of “existential damages.” Does that mean we’re bringing Sartre, Kierkegaard, Kafka and Nietzsche into court? Can you imagine using Kafka to provide clarity regarding a legal matter? If so, you never read The Trial. Do we turn to an expert in late 19th and early 20th century literature and philosophy?
All kidding aside, if we take a closer look, we can identify our own form of existential damages – think about loss of consortium. How different is it to determine the lost “value of marital sex” versus the lost “value of human personhood?”
Is this notion of personhood in essence the loss of human dignity, and akin to the loss of the joy of marital intimacy? Indeed, why is it that to be discriminated against based upon being a member of a suspect class is any more degrading or demeaning than simply being demeaned for no apparent reason or revenge? I understand that in one instance the problem is pervasive to and directed at a class of people, and the other is very personal. But to that individual, the loss of dignity is just as painful and as damaging.
We are already accustomed to having a psychiatrist or a psychologist testify that certain negative events caused certain negative reactions, followed by a financial or economics expert witness explaining how these events affected the person’s current and future finances. Describing these damages as existential is a matter of semantics. Call it what you wish, there is an unacceptable event that leads to a quantifiable consequence. Looking at it in this light, the notion of existential damages really doesn’t stretch Anglo-American litigation norms very much at all.
The real issue is the use of the word “existential.” It sounds pretentious and unnecessarily esoteric. But the idea is far from foreign, and worthy of some thought.