Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument next in Number 97-115, Margaret Kawaauhau v. Paul Geiger. Mr. Pressman, you may proceed whenever you're ready.

MR. NORMAN W. PRESSMAN: Mr. Chief Justice, and may it please the Court: Section 523 of the Bankruptcy Code excepts willful and malicious injuries from discharge and the bankruptcy court's finding here that Paul Geiger intentionally administered substandard care and that his action shocked even a person lacking formal medical training met this Court's standards set out in Tinker v. Colwell because his actions constituted a willful disregard of his duty.

CHIEF JUSTICE REHNQUIST: Well, Mr. Pressman, when you say that there was a finding that he intentionally administered substandard care, is that any different than a finding that the--that his standard, the standard of care which he recognized was negligent?

MR. PRESSMAN: The distinction here, Your Honor, is that Dr. Geiger knew the standard of care. He was asked and the record shows that he knew the proper standard of care was the administration of intravenous penicillin and he said, notwithstanding that, I gave Mrs. Kawaauhau oral tetracycline. The distinction here is the intentional administration of something--

CHIEF JUSTICE REHNQUIST: Well, I'm not sure I follow you, because you could say that about any number of things where you talk about medical malpractice. The standard was to perform surgery, but a--in a hypothesis, but this particular doctor prescribed medicine instead. He intentionally prescribed medicine and, therefore, his action was not merely negligent but intentional. I think that just blurs the entire dist--difference between negligence and intent.

MR. PRESSMAN: The distinction here, Your Honor, is that this is not a case of a slip of the scalpel. If Dr. Geiger had reached into his bag and pulled out the wrong medicine, or if he had botched a complicated medical procedure, we wouldn't have a case.

JUSTICE SANDRA DAY O'CONNOR: Well, what if you have a driver who intentionally puts his car in reverse and doesn't look back to see what's behind him and drives over somebody. I mean, under your theory, then that's inten--it's willful and no bankruptcy provision applicable.

JUSTICE ANTONIN SCALIA: Indeed, first degree murder.

JUSTICE O'CONNOR: Yeah, I suppose.

MR. PRESSMAN: In that--I would agree with that--that--

JUSTICE O'CONNOR: You would agree.

MR. PRESSMAN: --description, Justice O'Connor--

JUSTICE O'CONNOR: Yes.

MR. PRESSMAN: --that if somebody intentionally says, I'm going to put my car in reverse and I'm going to drive back and I don't care who's there, I think that is intentional. I believe an example which shows our point is--

JUSTICE O'CONNOR: You know, I just find it hard to believe that that's what Congress had in mind in writing this provision for exclusion under the bankruptcy law.

MR. PRESSMAN: Well, my response to that, Your Honor, would be twofold. First, I think if we go back to the Tinker case--

JUSTICE O'CONNOR: Well, I find Tinker a little hard to understand myself. I mean, maybe we can confine it to what it is, but I think that's a weak read.

MR. PRESSMAN: Well, Your Honor, I would compare what happened here--and let me start by saying, I think what's hard initially to understand about this case is that people assume that a physician would always act according to his duty and would never intentionally disregard it.

I think a better example here, an example which illustrates our point, was one used the other day which we considered, the builder who uses substandard steel. He doesn't--building collapses, it violates a code provision. He doesn't intend to kill anyone.

JUSTICE O'CONNOR: Do you think that there's anything in this record that indicates that the doctor intended that the petitioner lose her leg--

MR. PRESSMAN: No.

JUSTICE O'CONNOR: --or suffer some serious health loss?

MR. PRESSMAN: No. We concede that Dr. Geiger did not intend to hurt Mrs. Kawaauhau, but our position, Justice O'Connor, is that--and Dr. Geiger testified numerous times, he admitted it, that he knew that intravenous tetra--intravenous penicillin was the correct standard of care and--

JUSTICE RUTH BADER GINSBURG: --said candidly that you are not contending that he meant to hurt--that the doctor meant to hurt this woman and yet you say that the Tinker case is helpful to you, and that I don't understand, so--I thought Tinker was a clear case of intending what in those days was a very grave offense against a man's property.

MR. PRESSMAN: Your Honor, let me address that point. In Tinker, when Justice Peckham wrote for the Court, he recognized and he--recognized that the willful and malicious test had two prongs, willful and malicious. When analyzing whether Mr. Colwell--Mr. Tinker's action was willful, he said the action is willful, not that the injury was willful. He referred to the action and he said it was willful in the view--in the idea that it was intentional and deliberate. Dr. Geiger's actions here were intentional.

JUSTICE DAVID H. SOUTER: Well, but the trouble in Tinker was that the act which the defendant performed could not, as a matter of law or as a matter of definition, be performed without the necessary consequence of the kind of injury for which the law allowed recovery.

That is not the case here. The relationship between any deficiency in the doctor's care and the ultimate loss of the leg was not a relationship as a matter of law or as a matter of definition. It was a contingent factual relationship.

It turned out that way, but you can't say, I think, that at any given moment when he decided to use an oral antibiotic as opposed to an injection or what-not, that there was any kind of legal inevitability to the consequence for which the plaintiff is seeking to recover and that, I think, is why you have a problem in relying on Tinker.

MR. PRESSMAN: Justice Souter, I believe that Peter Halford, the expert defin--deposition, the expert who testified both in Hawaii and in the bankruptcy court, testified to that fact. He stated that the intentional administration of substandard care led to the worsening of her condition and the eventual amputation of her leg.

JUSTICE SOUTER: There's--I don't think there's any question in anyone's mind that it did. I don't believe the people on the other side will argue or have suggested that it did.

But in fact, the relationship is one of simple factual cause and effect. It is not the kind of necessity relationship that Tinker relied upon.

MR. PRESSMAN: And I think the point of your question and Justice Ginsburg's question is, does the term willful apply to the injury or does it apply to the act--

CHIEF JUSTICE REHNQUIST: Well, how--

MR. PRESSMAN: --and our point is--

CHIEF JUSTICE REHNQUIST: How can you say that an injury was willful if you're not referring to the act by which it was caused? I mean, injuries don't have intentions of their own.

MR. PRESSMAN: Your Honor, the definition of injury is twofold. The word injury can mean either the damage, the cut on my hand, the result of an action, or it can mean the action which causes the harm.

CHIEF JUSTICE REHNQUIST: How can an injury mean the action which causes the harm? I've never heard of that.

MR. PRESSMAN: In the phrase, for instance, his injury to the painting, it is the act and I believe--

CHIEF JUSTICE REHNQUIST: Well, his--

JUSTICE SCALIA: Whoever said that?

CHIEF JUSTICE REHNQUIST: Whoever said that?

JUSTICE SCALIA: Yes.(Laughter.)

JUSTICE SCALIA: Send them back to school.

MR. PRESSMAN: Your Honor, let me cite the definition from the Merriam-Webster Dictionary. Injury: an act or the result of inflicting something that causes loss or pain.

We cannot forgive his injury of the painting, or, his falsehood gave great injury to his brother's reputation. We're saying that the word injury is the act, not the damage, and I believe that's the definition which--

JUSTICE SCALIA: What dictionary was that? Let me--

MR. PRESSMAN: That is the Merriam-Webster Dictionary and a similar dictionary--a similar definition, Your Honor, appears in the Oxford Second Edition.

JUSTICE GINSBURG: If one asks, what injuries did you suffer, well, I broke my collarbone, I dislocated my hip, that's what one thinks of as the injuries.

MR. PRESSMAN: And I believe if I were starting with a clean slate in this case and I didn't have the definition that we had in Tinker, I think I'd have to--I do have to fight that battle.

JUSTICE STEPHAN GERALD BREYER: I mean, the problem I think that at least you have is, this is not your--the tort in your case is not an intentional tort on the Restatement's definition of intentional torts, I take it, and if that is so--if that is so, and I--it seems so, then either the word willful means to pick up intentional torts, in which case you'd lose, or somehow willful extends beyond intentional torts in the way you suggest, in which case you might win. But if you're right, it seems to create an irrational distinction among negligence torts.

Sometimes what is really the same thing, negligence, would not be dischargeable. Sometimes what is really the same thing, negligence, would be dischargeable, and that irrational distinction, though sometimes it would benefit your clients and sometimes hurt them, you see, doesn't seem one that the statute would like--be intended to make. Now, I put that to you because I'd like to hear your response, since I think it's important.

MR. PRESSMAN: I believe that in order to rule in our favor, one has to look at the term willful as meaning the same thing that this Court held, that willful means voluntary.

Dr. Geiger in this case was asked and he knew what he was doing. His action was intentional. Therefore, we meet the standard, the standard this Court set out. I don't believe I've answered your question, though.

JUSTICE GINSBURG: But then it would work without the special provision for, I knew I got into that car when I imbibed much too much and I happened to kill or maim someone.

So I knew what was intentional was, I got drunk. What was not--but you're transferring that--that's the act. I put myself in that shape so that I couldn't drive carefully.

MR. PRESSMAN: And Your Honor, in 1946 the Eighth Circuit in Harrison v. Walker held that drunk driving was a willful and malicious injury. It was only until after the enactment of the Bankruptcy Code in 1978 that there was some uncertainty as to whether that was still the law.

JUSTICE GINSBURG: Yes, but now we have a specific provision doing that and, if malpractice should work the same way, one would expect a similarly specific provision.

MR. PRESSMAN: Our position, Justice Ginsburg, is that the Congress reenacted the identical language in the Bankruptcy Code of 1978 and therefore the same interpretations apply.

If you look to the legislative history, which my colleague relies on, it doesn't say that Tinker is overruled.

JUSTICE GINSBURG: But you run up against that terrible problem that Tinker was a deliberate trespass on another man's property. Those were the facts. This was criminal con--what do they call it?

MR. PRESSMAN: Criminal conversation, Your Honor.

JUSTICE GINSBURG: Right.

MR. PRESSMAN: It was--nothing that I've seen in either the State court or the Supreme Court, this Court's opinion indicates that Mr. Tinker even knew who Mr. Colwell's wife was. It was an act which was intentional in that he--

JUSTICE SCALIA: Mr. Pressman, every act, every--even a negligent act has some willful action connected with it. You will to leave the snow on your sidewalk which somebody slips and falls on, but we don't call that doing willful injury to someone.

It seems to me we call it willful only when the intentional act is not one that leads to the injury, but the intentional act is the injuring. That's what I've always thought willful injury meant, not that there's some willful act along the line. There always is.

MR. PRESSMAN: Your Honor, if willful modifies injury, I don't think we have a very good position, but in Tinker, Your Honor, Mr. Tinker wasn't intending to hurt Mr. Colwell.

JUSTICE SCALIA: He didn't have to intend to hurt Mr. Colwell. He had to intend to do the injury, and he did intend to do the injury, which was criminal conversation.

MR. PRESSMAN: I would have to disagree with you, Justice Scalia. I don't--

JUSTICE SCALIA: I take Tinker to mean only you don't have to hate the person. You don't have to have some personal desire, maliciousness towards the individual, but that's quite separate from whether you intended to produce the harm, the very harm that you produced, and it seems to me in Tinker the person did.

MR. PRESSMAN: I don't see any evidence in the Tinker opinion that Mr. Tinker intended to harm anybody.

JUSTICE SCALIA: He knew that he was sleeping with some other man's wife. Did he not know that?

MR. PRESSMAN: In the opinions that I have read, that fact is not apparent. It appears that he slept with someone who was not his wife.

JUSTICE SCALIA: Well, that--

JUSTICE BREYER: Well--

JUSTICE SCALIA: --you'd have a good case if that were so.

JUSTICE BREYER: I--no, please. You--

JUSTICE BREYER: I have some language here in the House report which says that Tinker is overruled in--I mean, when they passed the statute. It says they--willful means deliberate or intentional. To the extent that Tinker v. Colwell held a looser standard, it's overruled.

JUSTICE O'CONNOR: Of course, in enacting the statute they didn't change the language. A little hard to--

MR. PRESSMAN: And Justice O'Connor, you're correct, they did not change the language of the statute and this Court has noted that reenacting the same language would be a strange way to change a statute. But even if we get to the legislative history--

JUSTICE BREYER: That's a good answer.

MR. PRESSMAN: I've won that argument? (Laughter.)

JUSTICE BREYER: Mr. Pressman, I--I'd like you to comment on this. One of the questions that I had, and I had it even after reading Tinker, was whether there was redundancy in the statute unless I read it your way, and I decided that there wasn't redundancy in the statute and this is the way I worked it out, and you tell me whether I'm wrong, or whether Tinker is inconsistent with this. It's got to be willful and malicious. We start, I guess, with the definition of malicious as the act whose purpose is to harm the third party.

I don't suppose willful adds anything to that sense of malicious. You can't be any worse than that. But there's also a sense of malicious in which, although you do not personally have a purpose or an animus to hurt the victim, what you do inevitably will hurt the victim, and I think that's what was going on in Tinker. In that sense of malicious, the word willful does add something, because if you take willful there to mean, he knows it's going to hurt the other person, he knows the inevitability of it and he does it anyway, knowing that that will be the consequence, that, then, as it were, jacks up the moral reprehensibility, the seriousness of the act. So in the weaker sense of malicious, willful adds something, and I thought that was consistent with Tinker. Am I wrong?

MR. PRESSMAN: Your Honor, in terms of the redundancy of the words, I believe it's difficult to come up with an action which is malicious but not willful. I think it's easy to come up with an action that is willful and not malicious.

An example of the second action would be if someone came in here to harm one of the justices and Marshall Bosley shot him. His action would be willful but not malicious. He wasn't disregarding his duty. On--an example of something which is malicious but not willful might be someone who came from a State where carrying a firearm was perfectly okay, but he knew in the City of Washington, D.C. that carrying one was illegal.

He carries it through the airport, makes it here, it drops out of his pocket, the bullet hits someone. His action there I think is arguably not willful but it's malicious. He had a duty. He disregarded his duty.

I think that's an example of something where you use both of the words willful and malicious. If the words willful and malicious both modify injury, then I think they are redundant, because--

JUSTICE SCALIA: Excuse me. What action of his was malicious there, the dropping of the gun, or the carrying of the gun? I agree with you, the carrying of the gun, intentionally violating the law is malicious.

MR. PRESSMAN: It was not the dropping of the gun, because that was an accident.

JUSTICE SCALIA: Right.

MR. PRESSMAN: It was the carrying of the gun--

JUSTICE BREYER: Well, you're--

JUSTICE SCALIA: You'd say that was malicious.

MR. PRESSMAN: Yes.

JUSTICE BREYER: You're using malicious in the sense of doing any wrongful act without just excuse, right?

MR. PRESSMAN: Without just excuse--

JUSTICE BREYER: Yes.

MR. PRESSMAN: --or a willful disregard, or a dis--

JUSTICE BREYER: Do you think that the--well, I guess you do think that that, maybe third or weakest sense of malice is the sense in which this--that this statute used it, but if that is the case, then the word willful adds the requirement that the harm that results to whatever the eventual victim is be a harm which is either intended or known by the actor to be the necessary consequence and if that's what willful does in this case, that doesn't fit your case.

MR. PRESSMAN: I would agree with that. If the word willful modifies injury, then I don't have a very good case.

CHIEF JUSTICE REHNQUIST: What else would willful modify besides injury?

MR. PRESSMAN: Your Honor, in Tinker, this Court says an act is willful in that--in the--in that the act is intentional or voluntary, not that the injury is intentional or voluntary. That's what this Court I believe said in Tinker.

JUSTICE ANTHONY KENNEDY: So you interpret the statute as saying, for a willful act which results in malicious injury--

MR. PRESSMAN: Justice Kennedy, that is the way I interpreted it and that is the way I read Tinker.

JUSTICE O'CONNOR: Well, maybe we'd better clarify Tinker and do it soon if that's your reading of it. I think the language used is somewhat careless, but it did say in Tinker the act is willful in the sense that it is intentional and voluntary and we think it is also malicious. I don't know what the Court meant by that, but perhaps some clarification of that language is in order.

MR. PRESSMAN: Your Honor, I'd also point out that in this case the standard that this Court set in Tinker has been a standard which has not--which has been well-used until the 1978 amendments. The matter came up before the courts in the McIntyre case and it came up before the case in Aetna.

In McIntyre the Court found itself with a case of someone who converted some collateral, even though there was no default on the loan. There was no problem with the Court finding that action was intentional and malicious.

The amicus in this case on my opponent's side has suggested that they're concerned about consumers being injured by my position and I think that answer is taken care of by the Aetna case, where there were some inadvertent--there was some inadvertent conversion of collateral.

JUSTICE GINSBURG: May I ask about a few of the facts here, it is extraordinary that a doctor would have no malpractice insurance, but that was the case here, was it not?

MR. PRESSMAN: Yes, it was, Your Honor. There was no malpractice insurance, and--

JUSTICE GINSBURG: Doesn't Hawaii State law require it?

MR. PRESSMAN: I don't believe it does. Some States do require it. Missouri does not require it and I don't believe that Illinois requires it.

JUSTICE SCALIA: Explain to me how consumers would not be hurt by your position. Most consumer debt is probably credit card debt. Let's assume a consumer who has a lot of credit card debt seeks a discharge in bankruptcy and the credit card company comes in and says, at a time when you knew you were insolvent you sought additional credit.

MR. PRESSMAN: Justice Scalia--

JUSTICE SCALIA: That's a willful--willful act and therefore all of your charges, once you knew you couldn't pay them, are not dischargeable in bankruptcy. Wouldn't that be the consequence? I think it would.

MR. PRESSMAN: In that case, yes, but I think the amicus point is that--

JUSTICE SCALIA: But that's a lot of cases, and you think that all credit card charges run up after the person is insolvent are not dischargeable in bankruptcy?

MR. PRESSMAN: It's a matter of what the facts are before the judge. In that situation, I think it would be. The point I think the amicus made was that in credit card debt in this country, if I buy a refrigerator at Sears, I give a lien on my refrigerator to Sears and the concern is that people will buy a refrigerator and maybe give it to their aunt, or sell it and 2 years later file and then find themselves being charged with committing a willful and malicious conversion, as the act used to mention, and in the Davis case, someone who converted collateral in accordance with an ordinary practice, a custom that was agreed upon with the lender, was found not to have acted willfully and maliciously. In the example given by the amicus, I'd say if someone bought 25 refrigerators from Sears and then filed bankruptcy 3 days later, or a month later, I think that would be willful and malicious, at least if I were the judge hearing that evidence. Mr. Chief Justice, this Court has long held that the discharge is for the honest and unfortunate consumer debtor, and I think the evidence in the record below here shows that Dr. Geiger is none of the above. Justice Murphy in her dissent below said that those words could be better applied to the Kawaauhaus, people, honest consumers who had the unfortun--the misfortune to land in Dr. Geiger's office. I'd ask to reserve my time if there's no further questions.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Pressman. Ms. Grandy, we'll hear from you.

MS. LAURA K. GRANDY: Mr. Chief Justice, and may it please the Court: The Eighth Circuit held that the debt owed by Dr. Geiger to the petitioner was dischargeable because he had no intent to harm the petitioner. That has been admitted this morning.

The Eighth Circuit opinion is supported by the plain meaning of section 523(a)(6), the legislative history of section 523(a)(6), the purposes and policy of the Bankruptcy Code, and the Tinker case itself. The plain meaning of section 523(a)(6) focuses on the language, willful and malicious injury. Willful and malicious both modify injury. You need both a willful injury and you need a malicious injury to comply with section 523(a)(6).

Willful was defined in Tinker as meaning intentional and voluntary. In the legislative history the Congress said willful means intentional and deliberate. It wasn't a whole lot different than the Tinker definition. Malice has been defined--

JUSTICE KENNEDY: Are there some instances in which reckless conduct is so reckless that you can apply the definition of willful and malicious to it?

MS. GRANDY: No, Your Honor. Reckless conduct is not intentional conduct and the statute, the congressional history as well as Tinker looked to intentional conduct. Tinker in particular, the examples they gave, Justice Peckham gave an example of, if I negligently drive my car into a busy thoroughfare, injuring someone, that would not be an intentional injury because I didn't intend to injure anyone, as opposed to if I intentionally went into that thoroughfare to injure someone. That would be intentional--

JUSTICE KENNEDY: And the case where the man throws the firecracker into the gasoline-laden basement and the explosion injures the fellow worker, that's--is--how does that come out, in your view?

MS. GRANDY: Your Honor, you're referring to the Hartley case, I believe, which--

JUSTICE KENNEDY: Yes.

MS. GRANDY: --was also decided by the Eighth Circuit, and what the Eighth Circuit said there was, the intent was to cause an injury. The injury was to startle and scare the employee in that case, as opposed to the injury which went further and actually injured the-- caused physical harm to him and the Court in that case said, when you have an intent to injure someone, be it startling or scaring them, we're not going to say the injury was only meant this far, not this far. In this case before you, we have no intent to injure at all.

CHIEF JUSTICE REHNQUIST: Well then, Ms. Grandy, did I understand you to say that Justice Peckham in 1903 was talking about driving a car into a busy intersection and--

MS. GRANDY: He said driving into a crowded thoroughfare. I was assuming he was driving a cart or buggy, Your Honor.

CHIEF JUSTICE REHNQUIST: Yes.

MS. GRANDY: I didn't think he was driving a car.

CHIEF JUSTICE REHNQUIST: Not a car, okay. (Laughter.)

MS. GRANDY: I had to think about that, too.

JUSTICE O'CONNOR: If willful means intending to injure, what's left for malicious? What does that add?

MS. GRANDY: What malicious adds is almost an escape clause. You can have an intentional injury that's not necessarily malicious. For instance, the banks of the Mississippi River are swelling and I know if I cut a hole in the levee I may flood out Farmer A, but I'm going to save the village down the river and that's why I'm cutting a hole in the levee. I don't intend necessarily to injure Farmer A, although my actions will and I know they will injure Farmer A, but my just cause or excuse, which comes out of the malicious definition, is that I'm trying to save the village down below, or in the example given earlier, where the deputy or the marshal stops someone from injuring you, he intends to injure that person, but his excuse is, he's trying to save the justices. So that's what malicious adds.

JUSTICE STEVENS: May I ask just one question about this famous Tinker case for you? Do you agree--and I'm inclined to think he's right--with your opponent that the opinion there did not rely at all on the notion that the defendant or the bankrupt tried to injure the husband of the woman he seduced? It was merely the question of whether she'd given consent and that was not enough to void--

MS. GRANDY: In that case, Your Honor, the injury went to the marital right itself.

JUSTICE STEVENS: That's right, but--

MS. GRANDY: That's what the Court determined.

JUSTICE STEVENS: --my question is whether, is it not correct that the defendant, or the seducer, whichever party it was, it's clear from the record that there's--the Court did not rely at all on the notion that he was trying to injure the husband of the woman he seduced?

MS. GRANDY: That's correct, Your Honor.

JUSTICE STEVENS: So that basically are you saying Tinker is an unusual fact situation and it was un--overruled by legislative history, or we should overrule it now? What is your position about Tinker?

MS. GRANDY: Your Honor, I don't think the legislative history necessarily overruled Tinker. I--the legislative history said that to the extent that other cases have relied on Tinker to hold a reckless disregard standard, they are overruled.

JUSTICE STEVENS: Right.

MS. GRANDY: Within Tinker itself, one of the real, or one of the main substances that have come out of Tinker is the implied malice standard and I think that's what the Court was referring to there.

In an act such as that, it's implied, whether you knew her husband or not, you were damaging his marital rights. You didn't have to know him. It was implied the minute that type of act was done, and there are--

JUSTICE STEVENS: Well, why couldn't we by analogy say here there's implied--an implied intent just as much as was implied there?

MS. GRANDY: Because in this case, Your Honor, there's no showing of any intent at all, which is admitted by the other side, to cause any injury.

JUSTICE BREYER: Well, if you could--

JUSTICE STEVENS: Well--

JUSTICE BREYER: --be malicious without being intentional, then what about the act of practicing medicine, not having malpractice insurance and then injuring your patients through negligently failing to look up the right remedies?

I mean, if you can have--what is--I mean, practicing--for a doctor to practice medicine, doesn't have malpractice insurance, just goes bankrupt and can't pay the debt, I mean, is that the equivalent today to what criminal conversation was 100 years ago?

MS. GRANDY: No, it isn't, Your Honor. The intent not to have malpractices insurance isn't an intent to cause an injury.

JUSTICE BREYER: No, and you'd have to say it's not intentional, but malicious. I mean, the argument he's making from Tinker is that it is--it is--it's not intentional, or it is intentional, exactly like here. In Tinker, you could have been found to fall within the statute, though you're--say he was sleeping with a woman. He may have been negligent and not known that she was married, all right. He says, similarly the person here, the doctor, gave a certain remedy not knowing, though he should have known, just like Tinker should have known, what the right remedy was. So he says, that's all of a muchness. I mean, that's the same case, he said.

MS. GRANDY: No, it isn't, Your Honor.

JUSTICE BREYER: Because?

MS. GRANDY:I believe in Tinker--

JUSTICE BREYER: All right, go ahead.

MS. GRANDY: If we go with your facts, Your Honor, if in Tinker the husband did not know she was married at all, I would agree, but--

CHIEF JUSTICE REHNQUIST: The adulterer--yes.

MS. GRANDY: Yes. Yes, that Mr.--yes, that he did not believe that she was married, then I think that fact cannot be true. I don't think those are the facts in Tinker.

JUSTICE STEVENS: But there's no showing that he did know in Tinker.

MS. GRANDY: There's no showing that he didn't know, but I think the conclusions that are set forth by the Court in that case imply that he did know. The Court says this is one of the grossest--

JUSTICE STEVENS: Well, it surely doesn't say so. It surely doesn't say so.

JUSTICE BREYER: Well, could it have--

MS. GRANDY: I'm sorry--

JUSTICE BREYER: Just as a matter of--the definition of the offense, could it have been criminal conversation if he didn't know?

MS. GRANDY: If he didn't know?

JUSTICE BREYER: I was assuming that it couldn't have been criminal conversation unless he, in fact, knew of the marriage. Am I wrong?

JUSTICE SCALIA: I assumed so, too, unless--

MS. GRANDY: I--

JUSTICE SCALIA: Unless the crime was fornication and not adultery. I thought it was an adultery crime.

MS. GRANDY: Yes, Your Honor. In Tinker, in order to prove criminal conversation you had to prove that there was a marriage and that the act was performed, and those two--

JUSTICE BREYER: Well, but do you have to know that the defendant knew that there was a marriage?

MS. GRANDY: In--

JUSTICE BREYER: That he knew that the woman he was sleeping with was married?

MS. GRANDY: I don't know, Your Honor.

JUSTICE BREYER: In the argument I think they argued that he didn't have to know, and that rather he ran the risk of the woman being married.

JUSTICE STEVENS: I think we're going to get back to the 18th Century pretty soon, the Statute of Anne again.(Laughter.)

MS. GRANDY: The case doesn't tell us, Your Honor.

JUSTICE STEVENS: No, it doesn't. I mean--

MS. GRANDY: No.

JUSTICE STEVENS: --you read the opinion, he might not have known anything about the marital status of the woman that he seduced.

MS. GRANDY: That's correct, Your Honor, but the examples that are given throughout Tinker refer to intentional conduct. If you look at the examples given by Justice Bailey--

JUSTICE STEVENS: Right, but they implied the intent because the facts were so outrageous to the judges at the time and I don't know--you know, the same kind of reasoning might justify--I'm not saying it would, but the conclusion of, well, this doctor was sufficiently outrageous in his failure to be careful and so forth and so on, that you'd take the same reasoning the Court used in Tinker, that you imply the intent. That's what they did. They implied the intent.

MS. GRANDY: They--

JUSTICE STEVENS: Or inferred it, I guess is the proper way to say it.

MS. GRANDY: My--Your Honor, I believe that the implied intent actually grew from the examples they gave of other intentional conduct in that case--

JUSTICE KENNEDY: Well, the implication of--

MS. GRANDY: --not necessarily from Tinker.

JUSTICE KENNEDY: The implication of malice was that there was a wrongful act done without any justification or excuse.

MS. GRANDY: Well, it was as--

JUSTICE KENNEDY: And it was intentionally done and so that implied the necessary malice.

MS. GRANDY: If he were intentionally doing a wrongful act, he would have had to have known it was wrong to sleep with Mr. Tinker--Mrs. Colwell, then--

JUSTICE KENNEDY: No--

MS. GRANDY: --Your Honor, because he knew she was married.

JUSTICE KENNEDY: No. It was the kind of act which was done without excuse and therefore the Court implied malice. That's the way I read the case.

MS. GRANDY: Right, Your Honor. I was just bringing up the language--

JUSTICE KENNEDY: It was Mr. Justice Peckham's case, not mine. (Laughter.)

MS. GRANDY: It is a difficult case to read and I think--

JUSTICE BREYER: No, but however you read it, isn't it fair to say that either he did not have to know of the marriage, but the injury followed as a matter of law whether he knew or not, or that he did have to know of the marriage and therefore we should assume simply by the definition of the offense that he knew in this case, and therefore the injury followed as a matter of law. One--either way, the injury in that case was inevitable and the injury in this case is not, isn't that--

MS. GRANDY: Yes, Your Honor.

JUSTICE BREYER: --the distinction that you would rely on?

MS. GRANDY: Yes. At the time that Dr. Geiger made the choice to do the various procedures that he did throughout this, his intent was never to injure, nor was his choice governed by any intent to injure.

JUSTICE BREYER: Nor was the injury, as it were, logically a necessity of whatever deficiency he may have been guilty of.

MS. GRANDY: That's--

JUSTICE BREYER: It happened, but it didn't necessarily happen.

MS. GRANDY: That's correct, Your Honor.

JUSTICE GINSBURG: But as you see the case, then, malpractice actions in general as a category would not come under (a)(6).

MS. GRANDY: No, Your Honor, not unless there was some intent on the part of a doctor to injure and I don't believe you find that in malpractice cases.

JUSTICE GINSBURG: How do you regard defamation actions for (a)(6) purposes?

MS. GRANDY: You would have to have an intent to defame the person. If--

CHIEF JUSTICE REHNQUIST: Well, isn't that an element of the crime of defama--or the action of defamation itself?

MS. GRANDY: I believe it is, Your Honor.

CHIEF JUSTICE REHNQUIST: I mean--or can you negligently defame someone? I don't know.

JUSTICE O'CONNOR: I thought you had to say something defamatory knowing of its falsity.

MS. GRANDY: That's correct, Your Honor.

JUSTICE SCALIA: I don't think it's correct, only if you're defaming a public figure.

MS. GRANDY: Okay. There are exceptions.(Laughter.) Your Honor, the Eighth Circuit looked for its definition of intent to the Restatement and, in doing that, it determined that an intentional act is one where the actor desires or believes that the results are going to occur and, looking at that definition, the Court determined that Dr. Geiger did not intend to harm the patient, therefore he had no willful desire, or therefore there was no willful injury.

Having reached that point, the Eighth Circuit concluded that section 523(a)(6) did not apply and therefore the debt was dischargeable.

JUSTICE GINSBURG: Do you know what the practice is in the States with respect to requiring, as a condition of retaining a medical license, malpractice insurance?

MS. GRANDY: No, I don't, Your Honor, but as a policy reason, if the State was concerned that this Court's ruling would have some effect to cause doctors to not carry malpractice insurance, they could govern that by licensing it within their own States and requiring insurance, just as in--most States are now requiring, or several States are requiring insurance in order to have a driver's license. Dr. Geiger, as found by the bankruptcy court, had several reasons for his treatment. He in prescribing various types of medicine at all times 1) believed his patient was getting better, 2) thought he was--she had the ability to absorb medicine very well through her stomach, which is why he made the various choices he made, thought her infection had burned out, and thought she had developed a superinfection in determining to stop using antibiotics altogether. So even if you were to take the definition of malice as set forth in the Tinker case, Dr. Geiger would have just cause or excuse for having done what he did.

The legislative history also supports this by looking at the language to the extent other cases have relied on Tinker to hold a reckless disregard standard. There, the courts once again are focus--or Congress is focusing on the intent of the injury itself, because a reckless act would be one that would not require intent. Within the section 500 of the Restatement is the definition of recklessness and within that subsection (f) of that definition there's a comparison of intentional misconduct to recklessness and, when you compare the two, recklessness does not require an intent. That's why we feel reckless conduct, which the Eighth Circuit said at the very worst his conduct was reckless, it would be dischargeable because there's--you don't have the element of intent in a reckless type of act.

Tinker we--I do not believe is in conflict with the decision of the Eighth Circuit, because most of the examples in Tinker appear to require an intent to injure. The implied malice standard is limited to certain facts in certain situations and Tinker certainly does not support a reckless disregard standard, so the legislative history is not overruling Tinker but basically saying, read Tinker correctly.The purposes and policy of the Bankruptcy Code will be furthered by the decision of the Eighth Circuit.

This is because the purpose of the Bankruptcy Code overall is to provide a debtor with a fresh start and that is why exceptions to discharge are narrowly reviewed. The--requiring an intent to cause an injury would lead to such a narrow interpretation and enhance the fresh starts.

Intentional act, if you only require that which results in injury, would lead to virtually everything being nondischargeable, as pointed out by the Eighth Circuit. If you speed up to a yellow light because you're in a hurry to pick someone up, that would be an intentional act.

It would be nondischargeable. If you're driving too fast for conditions, even though you're driving within the speed limit, that would be an intentional act which would be nondischargeable. Buying something on credit because you think you can pay for it, but intentionally buying it and then ultimately losing your job and not being able to pay for it would be an intentional act and be nondischargeable under that theory. Once again, Justice Peckham's example of driving into a crowded thoroughfare would be an intentional act under that definition. We feel the policies and the purpose of the Bankruptcy Code are furthered by this Court deeming that the decision of the Eighth Circuit was correct and affirming that decision.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Grandy. Mr. Pressman, you have 5 minutes remaining.

MR. PRESSMAN: Mr. Chief Justice, unless there are any questions I will--

JUSTICE STEVENS: I don't mean to be--I'm just curious. How do you pronounce your client's name?

MR. PRESSMAN: Kawaauhau.

JUSTICE STEVENS: Thank you.

CHIEF JUSTICE REHNQUIST: I thought in Hawaiian every vowel was supposed to be pronounced.

MR. PRESSMAN: Mr. Kaw--I've had trouble pronouncing it. That's--my understanding is that that's how to pronounce it.

CHIEF JUSTICE REHNQUIST: Well, you--

MR. PRESSMAN: Kawaauhau. Maybe it's Kawaauhau. I--

CHIEF JUSTICE REHNQUIST: I'm sure you know better than we do.

MR. PRESSMAN: I may be using the St. Louis pronunciation.(Laughter.)

CHIEF JUSTICE REHNQUIST: Very well. Thank you, Mr. Pressman. The case is submitted.

MR. PRESSMAN: Thank you, Your Honor.