THIS is the BIG NEWS!!!?????
pardon me while i ROFLMAO......
I have a lot of respect for Barbara but I think she had a Witness-flashback as the build-up to this was eerily similar to those announcements from the platform that an "important talk of monumental significance would be given in two weeks by Brother Blowhard" leading of course to a mere regurgitation of the current dogma.
I am sorry but an ESSAY analyzing the Society's Blood Brochure in a second-rate periodical from a Christian-based university, located in Waco, Texas, of all places, written by a newly admitted (July 2005) graduate of Florida State is not going to sway anyone, certainly not any active Witnesses. (I do have to give my colleague some credit. She took a home-study bar prep course and passed on her first try! See her blurb here: http://www.celebration-bar-exam-review.com/Index.htm?http&&&www.celebration-bar-exam-review.com/news.htm) so she must have some brains.. then again it is the Florida bar ...but I think that many are overstating the importance of this article and that is an understatement.)
No matter what the puffery the Journal of Church and State is not an important law journal, even Baylor's Law Review is more prestigious. It was tied with a bunch of others for a ranking of 687 on this list: http://law.wlu.edu/library/mostcited/index.asp
No one is going to care about an article which amounts to a fairly weak analysis in my opinion thus far (having only read the limited excerpts) that is not authored by a law professor or at least someone with years of legal expertise under their belt. This is not an ad hominem attack, it is simply stating that as with anything the source or author's credentials need to be evaluated and given weight.
Now more to the point.
There are a number of problems with trying to sue the Society (or individual representatives or congregations) on a basis that they have misrepresented the facts regarding blood and that this serves as a basis (cause of action) for suing.
First, virtually all instances of statements that the Society has ever made about blood which Ms. Louderback-Wood cites in her article to be a "misrepresentation" are in turn merely her own opinion that this is so. It is not a fact that there is a misrepresentation and proving it will be a matter of debate. For example in the excerpt provided, the author (Ms. L-B) says that by not informing the readers (Witnesses) about the underlying circumstances of the case (and that these were not blood or even child-related cases) or not giving the extra cites alluding to Witness cases which were dicta...that's when some judge is rambling on in his or her opinion but the rambling is not germane to the point at issue....that this conduct is a misrepresentation. As Ms. L-B should know, this is never or rarely done, even by lawyers, and certainly not by lay people which the Society is in this instance. Only lawyers argue about whether the facts differentiate the cases or the law, something Ms. L-B evidently just learned in law school and so happily followed down that rabbit hole too.
The Society is not misrepresenting anything when it cites what is the holding of a case, even if the case had nothing to do with blood or minors, and that is what it has done. (Doesn't everyone realize by now that every thing published by the Society is vetted by the Legal Dept? They aren't dummies you know.) And actually, there is an argument that the Society doesn't even have a duty to accurately cite cases or precedent (not legally anyway, morally of course).
The fatal flaw of this essay is that there is a presumption of misrepresentation. Whether there has been any misrepresentation is not so easily found. Citations that don't give all of the background, or even out of context are not by themselves going to be considered misrepresentation (legally speaking). Thus the bigger picture has to be evaluated as the author states in the excerpt.
Again in her opinion the bigger picture amounts to legal misrepresentation. In mine it doesn't, that's why we have an adversarial keep-the-lawyers-n-experts-employed system.
The bigger problem here, however, is that virtually all of the Society's statements regarding blood are going to be considered to be statements of religious belief (in addition to opinion) and non-behavioral facets of religious worship. These are untouchable areas in this country and many others.
Meanwhile, the act of choosing a medical option (receive an organ/tissue transplantation or not/blood) is not inherently a religious act.
So there is a problem of connecting the religious and untouchable statements of the Society with the secular act of refusing blood, finding a nexus and converting the latter into what is called in the law a "religiously motivated conduct."
Here, I think that we have a winner in that there would be enough testimony and published material to support the conclusion that a Witness who refuses blood is doing so out of religious motivation and not out of a purely secular medical choice. (After all the Society states it pretty plainly that Witnesses refuse blood based upon their bible stance, etc.)
Here is a small excerpt from the Molko case that sums up the legal situation:
7] However, while religious belief is absolutely protected, religiously motivated conduct is not. (Sherbert v. Verner (1963) 374 U.S. 398, 402-403 {Page 46 Cal.3d 1113} [10 L.Ed.2d 965, 969-970, 83 S.Ct. 1790]; People v. Woody (1964) 61 Cal.2d 716 , 718 [40 Cal.Rptr. 69, 394 P.2d 813].) Such conduct "remains subject to regulation for the protection of society." (Cantwell v. Connecticut, supra, 310 U.S. at p. 304 [84 L.Ed. at p. 1218].) Government action burdening religious conduct is subject to a balancing test, in which the importance of the state's interest is weighed against the severity of the burden imposed on religion. (Wisconsin v. Yoder, supra, 406 U.S. at p. 214 [32 L.Ed.2d at p. 24].) The greater the burden imposed on religion, the more compelling must be the government interest at stake. (Compare Wisconsin v. Yoder, supra, 406 U.S. at pp. 221-235 [32 L.Ed.2d at pp. 34-36] [government's strong interest in educating citizens insufficient to justify educational requirement that threatened continued survival of Old Order Amish communities], with Goldman v. Weinberger (1986) 475 U.S. 503, 508 [89 L.Ed.2d 478, 484-485, 106 S.Ct. 1310] [government's reasonable interest in uniform military attire sufficient to justify mild burden on religious expression created by ban against Jewish officer wearing a yarmulke].) A government action that passes the balancing test must also meet the further requirements that (1) no action imposing a lesser burden on religion would satisfy the government's interest and (2) the action does not discriminate between religions, or between religion and nonreligion. (Braunfield v. Brown (1961) 366 U.S. 599, 607 [6 L.Ed.2d 563, 568-569, 81 S.Ct. 1144].)
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Incidently speaking of differentiating the facts the Molko case would not be a good case to premise a lawsuit based on a misrepresentation of blood because the facts from those two cases so clearly shows that the situation was one of luring the two plaintiffs into a secluded retreat under false pretenses and with mistatements and subjecting them to days of deprivation and "brainwashing" as the court termed it - something that is entirely, entirely different than a false doctrine that is ingrained in the theology and culture, which one must accept before becoming a Witness and in a long-term situation that provides one with ample opportunity to obtain critical and disconfirming information.
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Anyway, a court is not going to touch the beliefs that "blood is unscriptural" so these will never be changed by external forces. However, a court is probably going to say that a Witness could be expected to rely upon this teaching (and the Society's could reasonably expect its members to follow its teachings) and that it resulted in harm (we presume for sake of discussion), thus such conduct was religiously motivated. So next comes the Yoder balancing test which I bolded above.
The government in stepping into the situation is 1) playing parens patriae and saying to the individual - "You don't know what you really should believe, so even though you believe that blood is unscriptural, WE deem that it is not." and 2) WE will not allow you, the Society, to mislead or induce persons to refuse blood any longer by not giving all of the facts about blood and medicine that WE deem are relevant but we can't prevent you from stating religiously that blood should not be taken (and of course we can't make you associate with someone who decides to take blood!)
Now, do you really think that a judge is going to say that the state's interest outweighs all of the implications of the above?
That is just ridiculous especially given the following facts:
1. Nothing prevents outside personnel from obtaining a blood transfusion for the patient through legal process. Especially in the case of minors, such is likely to be granted.
2.There is no conclusive proof that a Witness was relying upon the "mispresentations" of the Society at the time of refusing blood and was not acting in accord with their own beliefs and considered medical options. The weight of plaintiffs' testimony after the fact claiming that they were solely relying upon the Society's teachings is bound to be viewed with some scepticism and accorded its petty value, especially if they are seeking any monetary damages.
3. The issue of Justifiable Reliance probably sinks any lawsuit and is grounds for Summary Judgment in the Society's favor.
Here is what I mean:
1. The Society doesn't say that blood is bad medicine, or at least that is not the reason that it is rejected.
2. A person has ample opportunity to receive information about the benefits of blood transfusions.
3. Heck, everyone knows that they can benefit a person in an emergency and a plaintiff who pretends like they don't know that is not giong to be sympathetic before a judge or jury.
Given the above I find this statement in the original post of this thread aggregious:
The effect of these misrepresentations leaves both Jehovah’s Witness members, and medical staff treating them, ill-advised and Jehovah’s Witness patients more likely to suffer harm.
Are you serious? The medical staff don't know about the benefits of blood and are seriously pursuaded by the efforts of the patient or members of the HLC to pursuade them that it isn't the right treatment in an emergency situation or serious operation???? Come on.
Ok, so let's presume that a plaintiff is successful in surviving summary judgment and can show that they justifiably relied upon the Society's statements (even though the whole world would find and does find, I might add, such conduct completely stupid and obscene). What are the specific elements that one would have to prove in order to win a misrepresentation claim?
Rather than give you the legal elements, let me share with you the recently revised jury instructions here in California. This is always a good place for a lawyer or anyone to start because this is what you have to get a jury (or judge) to go along with:
(the "plaintiff" is obviously the one suing and the "defendant" would be the Society, the Corps, or possibly the Elders or KH or all of these)
1900. Intentional Misrepresentation
[Name of plaintiff] claims that [name of defendant] made a false representation that harmed [him/her/it]. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] represented to [name of plaintiff]
that an important fact was true; 2. That [name of defendant]’s representation was false; 3. That [name of defendant] knew that the representation was false when [he/she] made it, or that [he/she] made the representation recklessly and without regard for its truth; 4. That [name of defendant] intended that [name of plaintiff] rely on the representation; 5. That [name of plaintiff] reasonably relied on [name of defendant]’s representation; 6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s representation was a substantial factor in causing [his/her/
its] harm.
4 through 7 will be obviously easy if you can get there. Getting there is the problem.
Note these points:
The representation must ordinarily be an affirmation of fact, as opposed to an opinion. Under the Restatement Second of Torts section 538A, a representation is an opinion “if it expresses only (a) the belief of the maker, without certainty, as to the existence of a fact; or (b) his judgment as to quality, value, authenticity, or other matters of judgment.” Opinions are addressed in Instruction 1904, Opinions as
Statements of Fact.
and
1904. Opinions as Statements of Fact
Ordinarily, an opinion is not considered a representation of fact. An opinion is a person’s belief that a fact exists, a statement regarding a future event, or a judgment about quality, value, authenticity, or similar matters. However, [name of defendant]’s opinion is considered a representation of fact if [name of plaintiff] proves that: [[Name of defendant] claimed to have special knowledge about the subject matter that [name of plaintiff] did not have;] [or] [[Name of defendant] made a representation, not as a casual expression of belief, but in a way that declared the matter to be true;] [or] [[Name of defendant] had a relationship of trust and confidence with [name of plaintiff];] [or] [[Name of defendant] had some other special reason to expect that [name of plaintiff] would rely on his or her opinion.]
As I stated above, most likely the Society's statements would be construed as mere opinion, but since it might be possible to show that there was a "relationship of trust" or that a "special reason" existed that would induce the Society to expect that its blood-related statements would be relied upon (FDS-doctrine, hint, hint) then such opinion might be treated as "statements of fact" for purposes of a misrepresentation claim.
This sounds promising but actually proving a "relationship of trust and confidence" (before the revision to the instruction this was a "fiduciary" relationship) will actually be very difficult and an exploration into the FDS doctrine or analysis of Watchtowers and religious statements will be treated like a third-rail by a court - they won't go near that.
There is an alternative cause of action under a Negligence theory but I won't do into that. (hopefully I haven't lost you already :-)
So next comes the reliance part and here is the Jury Instruction for that:
1907. Reliance
[Name of plaintiff] relied on [name of defendant]’s [misrepresentation/concealment] if it caused [him/her/it] to [insert
brief description of the action, e.g., “buy the house”], and if [he/ she/it] would probably not have done so without such
[misrepresentation/concealment].It is not necessary for a [misrepresentation/concealment] to be the only reason for [name of plaintiff]’s conduct. It is enough if a [misrepresentation/concealment] substantially influenced [name of plaintiff]’s choice, even if it was not the only reason for [his/her/ its] conduct.
So the potential plaintiff only has to show that they were substantially influenced by the Society's misrepresentation (assuming that is proved of course) in order to win.
In summary:
1. This isn't an Establishment issue as I saw someone above allude that the Government's intrusion might result in such.
2. If anything it is a Free Exercise issue and the Society is certainly going to be allowed to believe whatever it wants.
3. Most likely Free Speech issues might be raised since the Society should be free to publish what it believes and such speech is very unlikely to rise to the level or type that the State can restrict.
4. The inherent Freedom of Association (not truly an ennumerated right) is implicated and the Gov is not going to be able either to restrict shunning (the Bear case not withstanding) nor compel association
5. Patient's rights and the right of patient's to choose their medical options has become a major issue in our Society in the last few decades and cases like the Terry Schivo situation continue to reinforce our belief that the government should stay out of the hospital room.
6. The Society's mistatements, exaggerations, understatements, misquotes, and not providing all of the information are not going to be considered to be legal MISREPRESENTATION, despite what our new lawyer says in her essay.
7. The world knows that Blood is useful, medical personnel know that it is foolish to reject it when it is needed, and so a plaintiff that at the time claims before medical personnel and probably legal ones also that they are making a personal choice to reject it are not going to be liked by a judge or jury when they appear hat in hand saying, I was "brainwashed."
8. The fact is that many Witnesses ignore the Society's directives, many do not carry the Blood Card (advanced medical directive) or the Healthcare-DPAs and so the Society always has a colorable argument that it could not be reasonably expecting that an individual would follow its advice or teachings on blood.
9. Mispresentatoin is a basis commonly used in business and contractual situaitons. The TORT (personal injury) that we have been talking about is extremely difficult to prove because you have to show the Society both knew that it was deliberately making a false statement and did so "recklessly" or "without regard" for the truth. Understand: The Society will claim that it makes its statements about Blood fully believing them to be TRUE and after careful deliberation and consideration of the scriptures.
THIS IS NOT LEGAL MISREPRESENTATION. It seems that our dear essay writer has confused the popular notion of misrepresentation, the dictionary definition with the LEGAL one. Misrepresentation is designed to punish those who deliberately lie, not fools who sincerely believe a falsehood!
10. Jehovah's Witnesses' stance on blood is a religious error. It must be dealt with through reformation from within, not by guys with fancy suits and briefcases or gals in tailored dresssuits, but by the wrinkly mismatched sports coat wearning Iowa Witness that says enough is enough. "I am not playing along anymore."
The bottom line. The tort of Misrepresentation can not and will never serve as a basis for a lawsuit against the Society. The Essay is a joke. This BIG NEWS is a joke.
Merry Christmas Everyone!
And Fight ON Trojans!
Eduardo Leaton Jr., Esq.
