Lies, Damned Lies, and Addictions

The only acceptable point of view appears to be the one that recognizes both sides of reality ” the quantitative and the qualitative, the physical and the psychical ” as compatible with each other, and can embrace them simultaneously. ” Wolfgang Pauli

Introduction

The issue of addiction has become a paradox in the courthouse. On the criminal side, addiction (e.g., alcohol, cocaine, heroin, etc.) is without exception seen as voluntary action for which the actor is responsible, whereas on the civil side (e.g., tobacco), it is treated as involuntary behavior that somehow shifts responsibility from the user to the provider and merits reward in the form of money damages. Plaintiffs” theory of causation and liability in tobacco litigation, for example, is rooted in the medical model of addiction as a “brain disease” for which the individual is not responsible.

The rebuttal presented here is that reliance upon the medical model of addiction to claim that drug use is pharmacologically compelled (and thus involuntary) behavior is conceptually at odds with the legal view of the person and related rules of conduct, which turn on actions and mental states, as opposed to physiological function. The point bearing emphasis is that classifying drug use as a “disease” for purposes of the information contained in a clinical diagnosis does not mean that those who seek and use drugs cannot be held fully responsible for the consequences of that behavior in terms of the questions of ultimate concern to the law. See Am. Psychiatric Ass”n, Diagnostic and Statistical Manual of Mental Disorders xxxiii (4th ed. 2000) (DSM-IV) (discussing “the imperfect fit” between medical and legal decision-making).

People do not smoke cigarettes because they are compelled to do so by the pharmacology of nicotine on the brain and body. The life of man includes a mental side, too. Regardless of addiction, people seek and use cigarettes (and other drugs) for their own reasons, on purpose, because they like it, and because the behavior makes sense for them given the choices available. See generally John B. Davies, The Myth of Addiction (Routledge 2010) (1992). In sum, “to characterize addiction as a disease is not morally incompatible with saying that addicts are responsible for yielding to it.” Richard Bonnie, Responsibility for Addiction, 30 J. Am. Acad. Psychiatry & Law 405, 413 (Nov. 2002). Addictions do not make us hapless puppets of our brains.

This three-part article will explore the role of addiction in product liability litigation. The installment in the next issue of LJN”s Product Liability Law & Strategy will explain the medical model of addiction and addiction in the courtroom. The conclusion will discuss a legal model of addiction and plea for personal responsibility and evidentiary support from the principles of quantum physics.

David L. Wallace, a member of this newsletter”s Board of Editors, is a litigation partner at Chadbourne & Parke LLP, with experience in a wide range of product liability litigation. The epigraph is from W. Pauli, The Influence of Archetypal Ideas on the Scientific Theories of Kepler: The Interpretation of Nature and the Psyche 208 (Routledge & Kegan Paul 1955) (emphasis in original).

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The only acceptable point of view appears to be the one that recognizes both sides of reality ” the quantitative and the qualitative, the physical and the psychical ” as compatible with each other, and can embrace them simultaneously. ” Wolfgang Pauli

Introduction

The issue of addiction has become a paradox in the courthouse. On the criminal side, addiction (e.g., alcohol, cocaine, heroin, etc.) is without exception seen as voluntary action for which the actor is responsible, whereas on the civil side (e.g., tobacco), it is treated as involuntary behavior that somehow shifts responsibility from the user to the provider and merits reward in the form of money damages. Plaintiffs” theory of causation and liability in tobacco litigation, for example, is rooted in the medical model of addiction as a “brain disease” for which the individual is not responsible.

The rebuttal presented here is that reliance upon the medical model of addiction to claim that drug use is pharmacologically compelled (and thus involuntary) behavior is conceptually at odds with the legal view of the person and related rules of conduct, which turn on actions and mental states, as opposed to physiological function. The point bearing emphasis is that classifying drug use as a “disease” for purposes of the information contained in a clinical diagnosis does not mean that those who seek and use drugs cannot be held fully responsible for the consequences of that behavior in terms of the questions of ultimate concern to the law. See Am. Psychiatric Ass”n, Diagnostic and Statistical Manual of Mental Disorders xxxiii (4th ed. 2000) (DSM-IV) (discussing “the imperfect fit” between medical and legal decision-making).

People do not smoke cigarettes because they are compelled to do so by the pharmacology of nicotine on the brain and body. The life of man includes a mental side, too. Regardless of addiction, people seek and use cigarettes (and other drugs) for their own reasons, on purpose, because they like it, and because the behavior makes sense for them given the choices available. See generally John B. Davies, The Myth of Addiction (Routledge 2010) (1992). In sum, “to characterize addiction as a disease is not morally incompatible with saying that addicts are responsible for yielding to it.” Richard Bonnie, Responsibility for Addiction, 30 J. Am. Acad. Psychiatry & Law 405, 413 (Nov. 2002). Addictions do not make us hapless puppets of our brains.

This three-part article will explore the role of addiction in product liability litigation. The installment in the next issue of LJN”s Product Liability Law & Strategy will explain the medical model of addiction and addiction in the courtroom. The conclusion will discuss a legal model of addiction and plea for personal responsibility and evidentiary support from the principles of quantum physics.

David L. Wallace, a member of this newsletter”s Board of Editors, is a litigation partner at Chadbourne & Parke LLP, with experience in a wide range of product liability litigation. The epigraph is from W. Pauli, The Influence of Archetypal Ideas on the Scientific Theories of Kepler: The Interpretation of Nature and the Psyche 208 (Routledge & Kegan Paul 1955) (emphasis in original).

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