Pounders v. Enserch (8/21/13)

We reviewed the Court of Appeals opinion here; go there for the facts. The Supreme Court granted review “to consider issues of statewide importance regarding the choice of law in wrongful death actions involving long-latency disease cases.”

It means by that accepting Pounders’ argument that injury occurs when and where the disease manifests itself. Well, actually, it says “when the disease is discoverable,” which raises issues to which the court gave no evident thought, but the point is to adopt the manifestation theory. It does this by showing a sudden regard for the rule lex loci delicti (having treated it for a generation with disdain, if not disgust), deciding that the discussion of it in the first Restatement (which adopted it) has “continuity” with that in the Second Restatement (which rejected it) if manifestation is the law.

Once upon a time the Restatement was intended to summarize the law of the states. It was a handy guide and that’s why our default was to follow it when Arizona had no law on point. Nowadays it is apparently regarded as Holy Writ, with subtle secrets to be revealed by a labored analysis (at least if you also use texts no longer canonical). The advantage of this is that, like the other kind of Holy Writ, the Restatement can mean whatever you want it to. This approach would delight the ALI; how it helps Arizona is less clear. There are decent arguments in favor of manifestation; this sort of pseudo-intellectual game playing will not convince any doubters that is necessarily either the law or a good idea. And as the Court of Appeals opinion illustrates, a more straightforward reading of the Restatement favors exposure, not manifestation.

But even though the injury took place in Arizona the applicable law is that of the state with the “more significant relationship to the occurrence and the parties.” The actual lex loci delicti is not entitled to preference or greater weight – especially where, as in many long-latency cases, it is “fortuitous.” The court goes through a standard Restatement Second choice-of-law analysis and decides, like both courts below, that under these facts New Mexico’s is the law that should apply.

The court did not take review of the ruling that that law bars the claim. The result is therefore affirmed, though the Court of Appeals’ manifestation-vs.-exposure analysis is vacated.

(link to opinion)