The 1918 Flu Pandemic And High Court Jurisprudence

By Mark Jensen
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Law360 (March 27, 2020, 3:16 PM EDT) --
Mark Jensen
Mark Jensen
The 1918 to 1919 influenza pandemic left a remarkably light mark on American history and society, the political commentator David Brooks recently observed on the PBS NewsHour. I decided to test his conclusion in a highly unscientific manner, by looking at U.S. Supreme Court cases that mentioned "influenza" ("Spanish flu" and "pandemic" added nothing to the mix).

There are only eight cases containing the word, of which just five dealt with the 1918 to 1919 outbreak. The five make an eclectic mix, some hardly pertinent anymore and others, sadly, dealing with issues that could be litigated today.

I must say that, consistent with Brooks' observation, none of these pandemic cases seems to have left a significant mark on American constitutional law, at least not because of their connection to influenza.

In the most political of these cases, Carmichael v. Southern Coke and Coal, a 5-4 decision upholding Alabama's Depression-era unemployment insurance tax, the epidemic came up only in a footnote explaining legislature's stated purposes.[1] One of the legislature's concerns had been the state's declining birthrate trends, which had consistently grown from 1910 to 1927, except for the pandemic years (plus nine months) of 1918 to 1919, and then had consistently declined during the Depression.

The decision reads, in tone if not specifics, like recent Obamacare litigation. Some employers had challenged the tax under the equal protection clause, on the grounds that nonseasonal businesses would pay into the unemployment compensation fund year-round, while seasonal businesses, which triggered more payments from the fund, would pay only during their active periods.

A secondary argument was that the federal Social Security Act coerced the state into giving up a portion of its sovereign authority. The majority found that the contested provisions of the tax were within the state legislature's discretion.

The minority disagreed but, interestingly, would have upheld the law if, like Wisconsin's, it had required the state to keep account of each employer's contribution and pay that contribution only to laid off employees of the contributing firm. The decision was announced on the same day that other New Deal economic legislation was upheld.

The other cases all involved flu victims or their families. The decision most pertinent today is Ziang Sung Wan v. U.S.,[2] vacating the defendant's conviction and death sentence for a triple murder at the Chinese educational mission in Washington, D.C.

Based on a detailed recital of the facts, typical of a Justice Louis Brandeis opinion, the court unanimously found that the confessions of the defendant, a Chinese immigrant, while in police custody were inadmissible. The confessions had been obtained after harsh interrogation while the defendant was extremely ill with influenza and colitis, including being held by the police without formal arrest for eight days in a Washington, D.C., hotel room. Despite this decision, the issue of what constitutes an inadmissible coerced confession haunts us today.

In two other cases, veterans' wives unsuccessfully sought influenza-related federal insurance benefits. In each case, they argued that the lower court judges improperly directed verdicts for the defense, and deprived them of their Seventh Amendment rights to a jury trial in a civil matter. The Supreme Court ruled against the plaintiffs with identical 6-3 splits.

In Pence v. U.S.,[3], a life insurance claim by the widow of an Army doctor was denied because he had failed to list all of his preexisting conditions, including after-effects of influenza, on a life insurance application in 1927. Unfortunately, Dr. Pence had complained of many of these very conditions in written applications for disability benefits.

This left Mrs. Pence to argue, unsuccessfully in the end, that additional evidence of her husband's good faith in submitting the applications should be presented to the jury. Not long after came Galloway v. U.S.,[4] in which the wife and guardian of a permanently institutionalized veteran sought permanent disability benefits under a program for World War I veterans. The decision poignantly details the soldier's history.

His highly erratic behavior began only when stationed near the front lines in France in late 1918, and was immediately followed by hospitalization for influenza for over 100 days. He then came home and was employed sporadically for over a decade before becoming institutionalized in a mental hospital. Filing her claim in 1938, his wife as guardian faced the steep burden of proving that her husband had become continuously disabled from the time of his first stint in the Army, before the policy lapsed for nonpayment of premiums in 1919.

Putting aside the technical jury trial issue, both insurance cases feel anachronistic to me. Galloway was really about what was then called shell shock, and I would expect that Galloway would today be eligible for prompt treatment and benefits from the military for post-traumatic stress disorder when he returned from Europe, not decades later. President Donald Trump's recent statement that January's Iranian missile strikes caused American soldiers mere headaches was promptly walked back by senior military officials.

With respect to Pence, a material misrepresentation or omission in a life insurance claim can still be a legitimate ground to deny coverage. However, Pence did not die until 1934, seven years after the life insurance application, and there was no indication in the opinion that he died of the ailments he omitted from his application.

There are more life insurance programs available today for people with preexisting conditions, including group policies and guaranteed issue policies that do not require a medical exam, as well as fully underwritten policies. Individuals in Pence's position should not, today, feel that their medical histories would automatically disqualify them from obtaining coverage.

Finally, on a somewhat happier note, in Wickwire v. Reinecke a widow won the right to a jury trial in an estate tax dispute.[5] The commissioner of the Bureau of Internal Revenue had found that her late husband's transfer of assets to her name about six months before he died, apparently of complications of influenza, was subject to estate tax as a transfer in contemplation of death.

The issue before the Supreme Court was whether the commissioner's finding was legally conclusive, and the court held that it was not: Wickwire was entitled to present evidence that her husband did not become sick until after the transfer.

This is an important case concerning the burden of proof in tax matters generally. But the facts of this case would not arise today due to changes in the law. As to the issue of transfers in contemplation of death, in 1976 Congress established a unified estate and gift tax regime, under which the Wickwire's inter vivos gift would likely have been added to the estate for tax purposes.

On the other hand, since 1982, surviving spouses can take an unlimited marital deduction for property inherited from their deceased spouse. And for good measure, in 2018 Congress raised the federal estate tax threshold to over $11 million.

Consistent with Brooks' conclusion, this small group of cases from the 1918 to 1919 flu pandemic left little mark on Supreme Court jurisprudence. Probably too much has changed to venture a similar prediction about the COVID-19 outbreak. There was, for example, practically no such thing as products liability or employment litigation at the time, and the financial impact of this crisis will not be confused with the aftermath of a world war. Yet Americans today are complying with very disruptive public health measures; perhaps this collective experience will make us the more understanding of everyone's challenges during this crisis.

Mark C. Jensen is of counsel at Nutter McClennen & Fish LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Carmichael v. Southern Coke and Coal , 301 U.S. 495 (1937).

[2] Ziang Sung Wan v. U.S. , 266 U.S. 1 (1924).

[3] Pence v. U.S. , 316 U.S. 332 (1942).

[4] Galloway v. U.S. , 319 U.S. 372 (1943).

[5] Wickwire v. Reinecke , 275 U.S. 101 (1927).

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