What Happened to Chad

For most of our cases, we try to figure out whether there is sufficient evidence for summary judgment, whether the case is a nonsuit, etc. Only a small portion of the opinions reveal a final resolution and an actual damages award if the plaintiff prevailed. We'll talk about damages quite a bit next week, but those are edge cases-- cases specifically selected to teach the boundaries of a difficult damages question. I think it's instructive to learn about the damages awards in "regular" damages cases, and so several years ago, while teaching a torts reading group, I took it upon myself to try to figure out how much winning plaintiffs were actually awarded. It's a tough assignment, but sometimes the results were incredibly revealing...and none more so than Emery v. Federated Foods.

In Emery, a three year old boy choked on a marshmallow and was left with brain damage. We teach the case in the context of whether a manufacturer has a duty to warn about dangerous products. In this instance, the court found that the defendant should have printed warnings about the dangers of marshmallows for children on their product bags. That might seem a bit of an overreach, but marshmallows are in fact quite dangerous due to the way they expand when exposed to moisture. The plaintiff won and was awarded $1 million from the manufacturer and $178,000 from two treating physicians, although the total number dwindled to somewhere in the $400-500k range after medical expenses and legal fees were paid. The court appointed a prominent local businessman, Richard Dasen, conservator to maintain Chad's funds and distribute them according to his ongoing needs.

It's important to note that Chad's lingering disability was and is profound, as he is often referred to as "vegetative." His mother, the plaintiff Laura Emery, attempted to care for the boy during the first few years after the case but proved unfit for the task, with the state removing him from her care after his case workers had "found [Chad] with open sores and suffering from malnutrition, dehydration and lack of care." [I'll cite below] All the while she received some payments from conservator Dasen. Five years after the award, however, Dasen filed a one-line letter with the court saying that all the money was gone (specifically, "To Whom It May Concern: As of July 2000, cash and savings for the trust account for Laura Emery (Chad Emery's mother) were depleted to a zero balance.''). At this point it's time for the big reveal, and that is that conservator Richard Dasen was an extraordinary scoundrel/criminal. While considered a pillar of the community, he actually was the focal point of a huge methamphetamine and prostitution scandal--the crux of it being that Dasen would find and identify attractive young methamphetamine addicts and coax them into prostitution in exchange for bankrolling their drug habit---to the tune of millions of dollars of payouts. An article in the Economist even implies that Dasen was personally responsible for a spike in drug problems in his city. Another article reports that a jury awarded $2 million to one of his [very young] female victims. Neither article mentions poor Chad Emery, the nearly-brain-dead boy whose funds were supposed to be expertly guided by this pillar of the community, but instead mysteriously vanished at the same time that he was paying millions for drugs and sex.

Other articles do make the connection. Nobody has yet proven that Chad's money was used in the meth/prostitution scheme, but the facts of that case, combined with the suspiciously quick evaporation of Chad's trust fund, raise serious questions. There are some accounts that say the money was tracked to Laura Emery, who was undoubtedly unprepared to care for a vegetative boy, and other accounts that say those claims were fabricated. It's hard to divine the truth. All we know is that there was a torts case that made it to our casebook to show that manufacturers might have a duty to warn, that the court awarded a sum and that said sum was gone in five years. As far as I know Chad Emery remains alive in an institution in Washington state, with his care paid for not by the marshmallow company or the conservator but by the federal government.

We read tort cases a bit like we watch a police procedural: there's an agreed-upon set of rules and tropes, and we turn the pages to find out who "won" and why. But for many plaintiffs, the conclusion of their cases are just the beginning of a lifelong ordeal. As past, current, and future attorneys, it's important to keep that in mind.

-Ellis