In economic recovery cases, by the way, there are jurisdictional variations. See note 4. In 4c on p. 12, we see an example of a different approach.
See also note 9: accountants can't control how the value of their reports is disseminated. It doesn't make sense to hold them responsible only for defects when only some of the players have payed for the benefit. We don't want to burden those who release information into the stream of commerce. But why should accountants be treated differently than auto manufacturers? Accountants have the same option of insuring themselves against liability. But maybe their trade is less predictable, in that it's not always obvious how others will view a report, or even how far it will range.
So, in economic cases, does tort law play a deterrent role? Look at Arthur Anderson: people sustain economic injury as a result of improper work. Reputational damage is so great at that point that tort recoveries are almost incidental-- the deterrent is the loss of reputation.
Dismissed: no duty.
So this is familiar: look for a duty.
We want to limit crushing exposure (as in Strauss): we want to limit liability to those with a contract (e.g., with the utility). Otherwise everyone will be recovering all over the place: the courts can't handle unscrambling the claims of each and every party who sustained an economic loss-- indirect stuff like this will lead to endless regulation.
Is the injury readily attributable to the accident (proximate causation... a hint of what is to come).
How about a doctor who negligently performs a prenatal procedure so that the fetus is injured?
Courts do not permit suits brought on behalf of a child for wrongful life (i.e., alleging that the child would be better off never having been born). How do you weigh the difference between being born with a disability and nonexistence? To what degree is it preferable?
This is a pretty wishy-washy court: they just do what other jurisdictions are doing.
So what is it that we want people to be able to recover, when there is an unwanted birth? Let's start with the healthy baby? Most juristictions do impose liability: it's an ordinary malpractice claim, at its core. What damages, though? Here, jurisdictions vary, but generally we're talking about the list of factors enumerated on p. 329.
Why do we call this "limited recovery?" What's left? The cost of raising the child. Now, on the one hand, the costs would not be there without the negligence of the doctor. But these are huge and neverending costs. And really there are some positive side-effects: people do take joy in children, and maybe we want to offset the damages by that. WI grants full recovery. It's a generous state. But basically, we're saying that we're not going to meddle in assigning dollar value to "joy," and really the economic upside of having kids is pretty low.
And anyway, do we offset other tort damages by the positive side-effects of the negligence? No. That's preposterous; well, you could try to argue for it as a creative move to reduce damages, but this is not an accepted strategy.
Plus, generally people don't even recover what they're entitled to (because the lawyer takes 30%), so we're reluctant to impose further offsets on top of that reduction.
Anyway, we're not going to compensate for emotional distress in cases where there's a healthy child. But an unhealthy child might require ongoing care. Those damages are offset by payments from other agencies. Note that medical expense award are not offset by whatever insurance the parents had.
So the court is picking and choosing from the range of recoveries that can/have been allowed. It's awfully arbitrary.
The dissent is sort of interesting: let's just do this case-by-case, rather than set out rules, because the rules themselves are no more predictable in this area.
And anyway, do we really want to have to prove in court that your child sux and your life is ruined, just in order to max out your bag of goodies? That's sort of a hardship.