It is probably dependent upon the instance.
Many are just careless scholarship. Contrary to popular opinion among JWs that is the Writing Dept is not replete with great and careful scholars. It has some good ones and had some great ones like Barbara (though she probably doesn't consider herself a scholar in the formal sense?)
Others, as stated by Ray Franz in CofC when he was helping to produce the Aid to Bible Understanding book, were deliberately written so as to demphasize disconfirming info or ignore it all together and to reinforce the accepted doctrines and culture at the time.
I think both of these situations continue today.
But my point with my previous posts is that the author of the journa's essay is completely off base if she seriously thinks that the tort of Misrepresentation, which is exclusively used in economic contexts, can serve as a basis for a lawsuit against the Society. If anyone has the whole article available I would love to read it for the legal analysis part of the essay. I am sure that she has well documented the out-of-context quotations and misrepresentions of medical facts, using "misrepresentation" in the common sense, but I question how well the legal analysis was laid out. I didn't see any in the excerpts that were provided.
The bottom line is that these statements of the Society, even if false, or its whole stand against blood transfusions, will not and does not constitute misrepresentation in the legal sense and this is setting aside all of the constitutional issues that would be considered in such a lawsuit.
What the author fails to understand is that the tort of Misrepresentation is not (like Defamation) where the issue is whether something is true or false or misleading. It is a tort designed to punish bad conduct of someone deliberately lying in order to induce you to do something to your detriment, usually to buy or to sell something. The issue is not the veracity of the claims it is the MENTALITY of the actor. If the Society either doesn't know that they are saying a falsehood (due to poor scholarship for example) or believes (even half-heartedly) that what they are saying is the truth (due to religious conviction perhaps), though it be a lie itself, there is no Misrepresentation. (there are other grounds for fixing the problem but not the tort of Misrepresentation).
Now what you are alluding to is the case where the Society deliberately lies. Well that is the hard case. Merely showing the context of the statement or misquote is not enough to prove the case. Usually with the economic situations you have to show, from an evidentiary standpoint, that either the actor took some step to conceal what they knew (the hidden defect), remained silent when they had a legal obligation to speak, or had actual knowledge of the truth - such as the car was delivered in a wreck or the real title indicated that it had been a wreck and the person forged a new one or had the car fixed and never tells the buyer about the real history.
From what I have gathered from the Anderson clips (and again I have not yet read the Essay) is that the author is pointing out all of the mistakes in the Blood brochure.
I mean Jeez Louise - hundreds of good apostates have been doing that for decades with the literature. that's why people are (falsely) getting excited saying "oh the Society misrepresented this" misrepresented that...and that is not what the law will address. Again even setting aside the religious issues.
If that were the case we would have seen lawsuits, even unsuccessful ones, propounded years ago. My god the Government didn't even tell us the truth about Iraq. Can we all sue someone for misrepresentation? No. Do you think that a religion is held to a higher standard than our government? You have to be fooling yourself if you think that is the case.
Hey it is a misrepresentation (not legally) when the Pope claims to speak ex cathedra with the authority of God. Do Catholics have a mass lawsuit? this is just silly.
Caveat Emptor is a well respected maxim in the law and everyone has a duty to accept what they are receiving with a grain of salt. Now, you and I knowing the Witness culture can understand that in that environment, there is a predisposition of trust and acceptance, and of course questioning or challenging is discouraged or even punished. thus it is easy to be fooled into thinking that due to the culture of Jehovah's Witnessses and to an extent the theology, such as the FDS doctrine, that Witnesses are subject to greater suppression of their individual judgement. Perhaps that is so, though I tend to believe that is less true than others.
But a court of law will be unfamiliar with the situation and sceptical of it. This reminds me of Margaret Singer's testimony in the Mosko case in that it would take expert witnesses to convine the judge or jury that the Witness was completely under the spell (or at least substantially so as the Jury instruction reads) of the Society and that the Society's deliberate lies contributed to their decision not to take blood (and of course that some harm occurred).
But here is another problem that I didn't mention before. Most torts, including Misrepresentation, are personal ones. Thus if the person dies after having refused blood, it may be an issue as to whether their family or heirs would have standing to sue the Society on a Misrepresentation claim. Maybe not. And of course if there is no harm that results, then they won't be able to sue for anything. So it has to be a situation where they are at least injured in some capacity or suffer emotional or psychological damages but do not die. Yet if death is not a real risk, I can't see that the blood issue would be likely to be fought about anyway. But all of that is an aside.
The point that all of this keeps coming back to and what I said in the beginning of the original post is that the fatal flaw is to assume that Misrepresentation, legally, has occurred. Again you have to show that the Society deliberately lied. How does one propose to do that? The only possible conceivable way that I could even imagine would be to get the actual writers of the misrepresenations on the stand and then grill them!
let's say you have a Perry Mason moment and they confess to deliberately writing and publishing somethng false even though they knew that the facts were different then what they said.
Ok, now you have to show reliance and that raises a very practical problem. You actually have to show that the plaintiff read the very statement in issue.
today, most JWs DO NOT READ THE BLOOD BROCHURE ANYMORE because it is out of date. It has been supplanted with the new information that has come out in the Watchtower. It is not enough that the religion says don't take blood or that they carry a No Blood card, voluntarilly, -which really hurts their case. You again have to show that the person harmed actually relied upon the specific misrepresented (false) statement. Sure they could testify that they did but I got to tell you they would probably get eaten up in court, and besides a jury isn't going to give them much credit.
there could be a sympathetic judge or jury that is pursuaded by expert testimony that the person was not acting totally under their own volition when they refused blood, and they didn't make any personal statements about it themselves, but then you come to the other topic which I never addressed, since it is pointless, the remedy.
In Misrepresentation situations, which again is in a contract situation most often, the person gets either damages or recesion of the contract.
there is no injunctive relief, like ordering the Society to stop telling its members to not take blood transfusions or not to punish them if they do. there is no way of putting the person back to their original position, except, economically.
What is being lied to about blood worth? If the person is injured then maybe millions. But if not, maybe a dollar is what they get. Punitive damages may be available but they are always by the will of the court. As for a class action like some have suggested forget about it. Not going to happen.
There is maybe only one hypothetical that I could think of that might be a winner. If a person were highly pressured to sign their Blood Card (advanced medical directive) and a lot of false statements were made by the Elder doing the pressuring (and you could win in proving that because they are appointed by the Society they should be deemed as agents of the Society) and the person resisted and resisted but his or her individual will was obviously overcome and she signed the card and the elder and his co-witness signed the card, and the peson then walked right out of the Kingdom Hall and was struck by a car, rendered completely unconscious, was taken to the hospital and the Elders followed and did not permit the Hospital people to either seek an injunction or administer blood, insisted on the validity of the blood card and the person was not given blood and was left paralized because of the lack of a blood transfusion. Then maybe, just maybe that would be a winner with a Misrepresentation suit against the Society (although she would have a stronger case against the Hospital). Anything, and I mean anything other than what I so narrowly described is not going to be a Winner. (Notice how a court looking at this instance doesn't have to get into the religious issues because the plaintiff would likely have accepted a blood transfusion or not signed the No Blood Card BUT FOR the pressure of the Elders and the mistatements of facts that induced her to sign the card. Note also that there would have to be a showing of such false statements, preferably of non-religioius type, such as "Blood is bad medicine" or "it won't improve the odds of saving your life", etc. by the Elder)
-Eduardo Leaton Jr., Esq.
