The Israeli Suit By the Children of Holocaust Victims Against the German Government: Can It Succeed?

On July 16, a lawyer in Israel filed a class action suit against the German government on behalf of "second-generation" victims of the Holocaust. The suit seeks compensation for thousands of persons who were born after the Holocaust, on the ground that the German government is responsible for the psychic injuries inflicted by direct victims of the Holocaust onto their children.

In this column, I will examine the legal roots of this extraordinary claim and consider what it might teach us about the potential reach--or limits--of reparations for historical wrongs.

The Genesis of the Idea for the Suit, and the Remedy That Is Sought

Even though the suit was brought in Israel, I think that it may have much to teach audiences in other countries. Israel's tort law is based, in part, on British common law, since the British set up a court system in Palestine in the late Nineteenth and early Twentieth Century. In addition, Israel's class action rules were borrowed quite self-consciously from the United States.

As with American class action suits, it is important to distinguish the underlying liability claim from the class action structure. In this case, I want to focus primarily on the former, asking the following question: Even if the lawsuit were being brought as an individual case, by a single plaintiff against the German government, does it make any sense from a legal point of view?

The lawyer who crafted the suit, Gideon Fisher, claims that he first thought of bringing a claim on behalf of the children of Holocaust survivors after representing their parents in claims relating to their wartime suffering. He noticed that the children who accompanied their parents to his office suffered from a variety of symptoms reflecting a condition that he believes is post-traumatic stress disorder (PTSD). His suit describes the medical condition of five representative plaintiffs, and contains an opinion by a psychiatrist who claims that clinical research shows a high frequency of emotional disorders which he identifies as PTSD among the children of direct Holocaust victims.

Fisher wants the German government to establish a fund to pay for the mental health treatment of the thousands of children of Holocaust survivors. The suit estimates that the treatment program would last three years, and cost approximately $30 million. It does not seek any other compensation for the plaintiffs.

The Simple Part of the Suit: The Right to Recover for Remote Consequences of Past Torts Is Well-Established

The tort principles upon which Fisher is basing his suit are both simple and very controversial. Let's take the simple part first: It is well-established that a person who engages in an intentional tort can be held responsible for consequences that are very remote indeed.

For example, a person who tries to shoot another person can be held liable for the consequences of the bullet's ricocheting in a freak manner and injuring persons far away. Of course, the Holocaust was a uniquely horrible event, but it was also a bundle of intentional torts--the Nazis engaged in massive numbers of acts constituting battery, assault, false imprisonment, or intentional infliction of emotional distress, as well as acts constituting a variety of free-standing torts rooted in customary international law, such as genocide and slavery. Thus, it stands to reason that the current German government, as successor to the Nazi government, could be held responsible for a lot of "ricochet" injuries that extend beyond the deaths of the people taken to camps to be gassed.

The More Difficult Aspect of the Suit: An Attempt to Recover for Pure Emotional Distress

Now for the controversial part: The tort law has always been very skeptical of recognizing claims for pure emotional distress, and has done so over the last century quite grudgingly. Where psychic injury accompanies physical injury, tort law has always been willing to allow compensation for the former, once the latter is proven, on the theory that they are naturally paired. For example, a person who suffers mental shock as a result of an accident that causes even very slight physical injury has always been able to receive full, and often generous, compensation for the shock, even if the damages for the physical accident were slight.

The law of intentional torts originally allowed compensation for pure psychic injury only if the defendant intended that the victim be afraid of a physical contact. It was only in the 1960's that courts first recognized the tort of intentional infliction of emotional distress, which allows the victims of outrageous mental abuse to receive compensation, even if they never feared that they would be touched by their abuser.

(Most of the Nazis' horrific activities will be rightly classified as intentional torts. But it is conceivable that some could also be swept within negligence law. However, this would not improve the plaintiffs' situation. In the law of negligence, meanwhile, the scope of recovery for pure psychic injury is even narrower. Courts have disallowed compensation for pure psychic injury, except where the victim was afraid that he or she would be physically struck and fortuitously was not, and in a very narrow range of cases, where the victim witnessed a close family member suffer a physical injury.)

In sum, then, even if tort law makes intentional tortfeasors liable for a large range of unintended consequences, those consequences still must be the sort of injuries that the tort law typically recognizes as a compensable harm. PTSD is not usually the kind of harm that, on its own, is compensated in tort law; it must typically be associated with a physical injury or the threat of a physical injury.

Other Plaintiffs Have Recovered Damages for Torts Preceding Their Birth

The plaintiffs in the second-generation Holocaust victims suit do have one strategy they could employ, however. They might argue to the court that the distinction between personal injury and psychic injury is specious, and undercuts a key principle courts have developed since the 1960's: While the wrongfulness of a tortious act may not manifest itself immediately, this fact should not excuse the wrongdoer.

The best example of this modern principle is the DES case, where defendant pharmaceutical companies were held liable for cancers caused in the daughters of women to whom a defective drug was prescribed. The defendants arguably breached a duty to the mothers, not the daughters (who were, at the relevant time, in utero and not yet legal persons). There, however, courts had no trouble linking the wrongful conduct before the vicitms' birth to a right to redress after their birth.

Readers may point out that, unlike the second-generation Holocaust victims, the plaintiffs in the DES cases were at least conceived when the defendants acted wrongfully. But from a legal point of view, I think this distinction is likely to be considered irrelevant. As the recent lead paint litigation around the country shows, courts are willing to hold defendants liable for wrongful conduct that poses a risk of injury to persons who are not yet conceived - and indeed, were not conceived for many decades. In those states that have permitted the lead paint suits to go forward, the paint industry is being held liable for the mental retardation of children who ate lead paint chips that allegedly were wrongfully manufactured seventy years before the children were harmed, and thus many decades before they were born.

Should It Make a Difference if the Pre-Birth Tort Causes Psychic, Not Physical Injury?

It follows that if there is any reason to categorically exclude the "Second Generation Holocaust" victim suit, it must be because pure psychic injury is different in some way from physical injury--so different that we cannot allow tort system to handle it the way it might handle a claim about cancer (as in the DES cases) or blood poisoning (as in the lead-paint cases).

Under this analysis, a strange consequence follows: A person born in 1963 to a Holocaust victim who was the subject of a medical experiment that produced a physical deformity in the child would have a valid claim in tort. However, the same person would not have a claim if the parent's psychic wounds from the terrible experiment were so great--and the subsequent home life so poisoned--that the child developed not a deformity, but rather PTSD.

What might be a ground for drawing this line? I must admit, I am personally torn on this issue. As the child of two Holocaust survivors, I can easily see the logic of the argument that psychic wounds can affect subsequent generations. And yet, I also can see the practical concerns that claims based on "ricochet psychic injuries" pose for the courts.

The most obvious one is causation. The defendants in the DES cases never seriously tried to deny that the cancers suffered by the plaintiffs were, in fact, caused by their product--the science supporting the causation claimed by the plaintiffs was too strong. The same could not be said, however, for other second-generation claims, such as those involving suits by children with birth defects whose mothers had taken Bendectin. The tort system was embarrassed when, after a number of blockbuster damage awards, it was realized that, in the Bendectin cases, the causal claims of the plaintiffs were not provable.

Psychic injuries pose even larger, more difficult causation problems. How can we know to what degree the emotional problems described by the 40- and 50 year-old representative plaintiffs in the Israeli suit are the result of what happened to their parents in the 1940's, as opposed to factors that may have come from outside the home? Israel itself is an environment filled with unique stressors.

But what if these practical problem of proof could be overcome? Skeptics raised many of the same practical objections to the DES cases when they were first brought, and the world did not come to an end when courts allowed them to go forward. Practical solutions were found, and rough justice was done. After all, why should the German government fight over $30 million dollars, when it has already paid out over $60 billion in Holocaust reparations since the 1950's?

The Repercussions of the Second Generation Holocaust Suit for the U.S.'s Suits By Descendants of Slaves

The significance of the "Second Generation Holocaust" suit is less for Germany and Israel, than for the United States. As I pointed out in a column last year, the Seventh Circuit revived a massive class action brought by African-Americans who claim they were injured in the present day by the consequences of slavery, and want the corporations who benefited from slavery to compensate them for these injuries.

The lawsuit focused primarily on the economic benefits that living African-Americans claim they would have received, had their enslaved forbears been paid fairly. However, one can easily imagine that the plaintiff class could also make a credible argument similar to those made by the children of Holocaust survivors, for there is a sizable body of research that suggests that the consequences of slavery are as much psychic as economic. While African-Americans today might not be able to prove that they suffer PTSD, perhaps the principle that underpins the Israeli suit could be refashioned to fit the psychic injuries suffered by fourth- and fifth-generation relatives of victims of the African slave trade.

Comparisons like the one to slavery show why the claims of the children of Holocaust survivors pose an interesting challenge to tort law not only in Israel, but also around the world. The problems of adjudicating such claims in the context of a class action (problems that I have chosen not to address in this column, make the challenge even greater). But at the core of the case is a problem about the limits of redress for psychic harm transmitted over generations - a problem that cannot be ignored, but is not easy to solve.