The root interpretive problem is that courts use injury, harm, and damages loosely and synonymously in a variety of contexts, including civil RICO. So, at the end of the day, the definitional word-games wind up as an exercise in question begging.

Last time, we examined the text of RICO and certain tentative steps that courts have taken toward a definition of RICO’s “business or property” requirement. Now, we’ll take up the Supreme Court’s latest stab at the issue in Medical Marijuana v. Horn.

Douglas Horn was an over-the-road trucker. He lost his job after failing a random drug test that revealed the presence of tetrahydrocannabinol (THC) in his system. THC is the substance that gives marijuana its psychotropic properties. Cannabidiol (CBD) is also a substance found in the marijuana plant, which has both drug-use and industrial (hemp) strains, and in recent years it has been found to have medicinal value, especially in the context of pain management. In September 2012, Horn purchased a bottle of “Dixie X Dew Drops,” a CBD oil derived from hemp, in the hope of mitigating pain and inflammation that he suffered as a result of a motor vehicle accident. Prior to purchasing Dixie X, Horn and his wife investigated the product and were informed that the product contained “no THC” and “zero percent THC.” After Horn failed the drug test, he purchased a second bottle of Dixie X, had it tested, and learned that it did in fact contain THC. Horn then sued, alleging a host of state-law claims and a RICO violation, all predicated on his loss of earnings and other benefits.

The District Court granted summary judgment to Medical Marijuana on some of Horn’s state-law claims because he did not claim that he “suffered any personal injury or injury to property as a result of Defendants’ conduct.” But later, as trial approached, Medical Marijuana filed a motion in limine to preclude the testimony of Horn’s damages expert on the ground that the type of damages that Horn sought are not recoverable under RICO. The court sensed that “in truth” the motion was dispositive and, as such, would be treated under Rule 56(f). In an abrupt volte-face in light of its previous attack on Horn’s state-law claims, Medical Marijuana now argued that his alleged damages were not cognizable under RICO “because they are predicated on the bodily invasion plaintiff allegedly sustained when THC was introduced into his system through the ingestion of Dixie X.” In short, therefore, the District Court concluded that “because plaintiff’s loss of earnings flows from, and is derivative of, a personal injury he suffered, his lost earnings do not constitute an injury ‘to business or property’ that is recoverable in a civil RICO action.” We’ll return to the issue later, but—framed in this “derivative” language—the court was to some extent conflating two issues: type of injury and cause of injury.

The Second Circuit reversed, reasoning that “while Section 1964(c) implicitly excludes recovery for personal injuries, nothing in Section 1964(c)’s text, or RICO’s structure or history, supports an amorphous RICO standing rule that bars plaintiffs from suing simply because their otherwise recoverable economic losses happen to have been connected to or flowed from a non-recoverable personal injury.” The court was satisfied that a loss of employment qualifies as a business injury, so the remaining question was whether there is an “antecedent-personal-injury bar” that stands to disable claims that derive from personal injuries. The court found that there was not, even though Section 1964(c) “implicitly excludes recovery for personal injuries.” This is so because “the negative implication that RICO excludes recovery for personal injury does not mean that a plaintiff cannot sue for injuries to business or property simply because they flow from, or are derivative of, a personal injury.” This begs another question because Horn’s argument below was that the ingestion of THC caused him “economic damage” not a separate “injury”: “The nexus between the RICO violations … and [plaintiff’s] resulting economic damages … is the harm of the THC that was introduced into [his] system by Defendants’ product.” That question was left for the Supreme Court to resolve.

The Court granted Medical Marijuana’s petition for writ of certiorari to answer this question: “Whether economic harms resulting from personal injuries are injuries to ‘business or property’ under civil RICO or are instead personal-injury damages.”

In a 5-4 decision, authored by Justice Amy Coney Barrett, the majority held that they can be, although it reached this conclusion by a circuitous path. Before retracing that path, we should pause to consider Justice Clarence Thomas’s position that the writ of certiorari had been improvidently granted.

Although Justice Thomas agreed that the question presented was rooted in a circuit split ripe for resolution, he had a twofold objection to proceeding: one factual and one definitional. The factual problem arose because the question presented assumed the existence of a “personal injury,” a hotly contested fact. The definitional problem flowed from what he saw as inadequate briefing. Each of these issues bears examination.

There can be no doubt that recovery for economic harms resulting from personal injuries requires the predicate existence of personal injuries. At the Supreme Court, Medical Marijuana argued that “Horn suffered a quintessential personal injury [by] ingesting an unwanted substance.” Horn, by contrast, contended that he “did not suffer any harm to his person and that his injuries were only economic in nature.” And one could not sort this conflict out with reference to the record: the Second Circuit “sidestepped” the question and the District Court “expressed different views at different points.” In Justice Thomas’s view, then, this put the Court in the position of rendering an advisory opinion or functioning as a fact finder.

Further troubling the analysis is the uncertain nature of the key phrase “injured in his business or property,” which the Second Circuit did not decide the meaning of—and neither party offered a complete definition of the phrase in briefing. Indeed, the lower court seized on “business” without regard to the possible meaning of “property” and how the definition of one term might color the definition of the other. In drawing attention to the definitional conundrum, Justice Thomas identified yet another unresolved gap in civil RICO: what sources a court should draw on to give meaning to the phrase “business or property.” Lower courts have relied on the state’s definitions of business or property, RICO’s legislative history, and Clayton Act interpretations.

The majority began with an implicit nod to Justice Thomas’s concerns, emphasizing what they would “not decide”: whether Horn suffered a personal injury when he consumed THC, whether “business” encompasses “employment,” and what “injured in … property” means. With those items left for another day, the Court moved on to address a narrow issue: “whether civil RICO bars recovery for all business or property harms that derive from a personal injury.” To answer this question, Justice Barrett faced and made an interpretive choice: whether to give the word “injure” an ordinary dictionary meaning or a specialized tort-law meaning. She chose the former, which set up the principal point of friction with the main dissent. In her view, “injure” means nothing more than “harm” or “damage.” Thus, “[a] plaintiff has been ‘injured in his business or property’ if his business or property has been harmed or damaged.” So conceived, cognizable “injury” is bounded by “business or property,” which cuts off recovery for all other injuries. “But the ‘business or property’ requirement operates with respect to the kinds of harm for which the plaintiff can recover, not the cause of the harm for which he seeks relief.” Cast in the form of a hypothetical, “if the owner of a gas station is beaten in a robbery, he cannot recover for his pain and suffering. But if his injuries force him to shut his doors, he can recover for the loss of his business.” We’ll have more to say about the hypotheticals that the parties and justices offered, but for now, suffice it to say that the majority held that “a plaintiff can seek damages for business or property loss regardless of whether the loss resulted from a personal injury.”

This conclusion only holds, though, if “injured” is given its ordinary, rather than specialized, meaning. The specialized meaning is a tort-law staple under which “injury” is defined as an “invasion of a legal right,” whereas “harm” is the actual loss or damage resulting from the invasion. In the context of Horn’s case, Medical Marijuana and the principal dissent argued that Horn would need to show that he “suffered an invasion of a business or property right,” which Justice Barrett equates to “a business or property tort.” Whether this equation is quite right bears further examination and is an issue that we’ll rejoin shortly.

The majority hung its choice of ordinary meaning on two related pegs. First, legal dictionaries define “injury” in both the contested senses. Second, because Section 1964(c) chooses the participial form (injured) rather than the nominal (injury), Medical Marijuana’s proffered dictionary (Ballentine’s Law Dictionary) undercut its position because it defines “injured” as “hurt, damaged, [or] wounded.” This smacks of definitional trickery, but, in fairness, Medical Marijuana did a bit of the same in positing that “damage” and “damages” are interchangeable terms and that, therefore, the fact that “damages” appears in Section 1964(c) (“shall recover threefold the damages he sustains”) means that Congress was drawing a distinction between the concepts of injury and damage. This argument is paper-thin, given that it is well settled that “damages” is a term of art signaling the monetary quantification of harm and rarely used otherwise in legal contexts. The principal dissent partially rescued the argument by conceding that although damages can mean “monetary redress,” in the context of Section 1964(c), in which “damages” are the thing that a victim “sustains,” the word can only mean something like “losses.” This is so because, as the dissent saw it, “[a] plaintiff cannot suffer or sustain ‘monetary redress,’ as the Court seems to think, but he can sustain losses.” Although this reading is marginally plausible, it denies the practical realities of litigation, in which a jury will be asked something like, “[In] dollars and cents, if any, what do you find to be the damages that would fairly and reasonably compensate plaintiff for injuries proximately caused by defendant’s violation of [Section 1962]?”

The root interpretive problem is that courts use injury, harm, and damages loosely and synonymously in a variety of contexts, including civil RICO. So, at the end of the day, the definitional word-games wind up as an exercise in question begging. A more fruitful line of inquiry, I think, is the nature of Section 1964(c), which—as I’ve already posited—is that of a statutory tort. To that subject we’ll turn next time.

Randy D. Gordon is the founding partner of the Dallas and Fort Worth offices of Duane Morris. He is executive professor of law, history, and performance, visualization & fine arts at Texas A&M University. This series is excerpted from a forthcoming article, “Defining Civil RICO’s ‘Injury to Business or Property’ Requirement: The Supreme Court Takes a Few Steps, Says It Punts, but Actually Fumbles,” in the Penn State Law Review.

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