“FAIL stamp” by Hans Gerwitz is licensed under CC BY-SA 2.0.
Chloe Knue, Associate Member, University of Cincinnati Law Review
Imagine that you are sitting around a campfire telling scary stories with a bunch of law students. One student takes the flashlight, puts it up to his face, and says . . .
A couple of years ago, there were these law students in Georgia—90 of them—who took the bar exam and were told that they failed—when they had really passed. But it gets worse, he says, as some of them did not find out about this error for over a year and had already taken the bar again. Oh, the horror!
While this may sound like a nightmare, it actually happened. Forty-five examinees from both the July 2015 and February 2016 bar exam “were wrongly told that they failed[.]” And in a spooky twist, on January 8, 2020, the Eleventh Circuit affirmed the district court’s decision not to hold the software company responsible for the disaster liable. Section II of this article provides the factual background and discusses the arguments set forth by the class action plaintiffs in opposition to the software company’s motion for summary judgment. Section III argues that Georgia law permitted an outcome in favor of the plaintiffs or, alternatively, that the law should have been modified to allow those who are injured in this way to recover. Section IV concludes that summary judgment was not a just result.
The Georgia bar exam consists of a multiple choice section and six essays; a passing score is a 270. If an examinee comes within five points of a 270, examiners will regrade the essays. If the regraded score puts the examinee above a 270, that score stands, and the examinee has officially passed the bar. This is where the software company, ILG Technologies (“ILG”), comes into the picture. ILG entered into a contract with the Office of Bar Admissions (“OBA”) to create software for its administrative procedures, which included keeping track of exam scores. ILG’s software failed, however, and “the scores on the regraded essays were not properly taken into consideration in calculating the scores.” Thus, 90 examinees, whose essays went through this regrading process and received above a 270, were wrongly told that they failed. It became public record, via the OBA’s website, that the 90 examinees did not pass the bar.
The class alleged negligence and defamation, among other things. The problem with alleging negligence, however, is that the class sought to bring a tort cause of action based on a contract. The state of Georgia, however, has something called the “economic loss rule,” which prevents parties from being subject to double liability on the basis of contract and tort. But in this case, no contractual relief was available to the class because the examinees were not privy to the contract between OBA and ILG. The court noted that the economic loss rule does not apply in two situations. The unifying idea is that there must be an “‘injury done independent[ ] of the contract[.]’” First, “‘[t]he independent duty exception to the economic loss rule applies in cases where the plaintiff identified a statutory or common law duty that would have applied regardless of the existence of an underlying contract.’” Examples include the relationship between attorney and client, and principal and agent. The court was unpersuaded that such a special relationship existed.
The second situation, on the other hand, was much more compelling. “[T]he economic loss rule does not apply to claims where a plaintiff seeks to recover damages for harm to his  person or  property.” First, the class pointed to their physical symptoms, including, nausea, weight gain, and headaches. The court remained unmoved, and reasoned, “[d]amages for such physical manifestations of psychic or emotional trauma are generally unrecoverable in negligence actions under Georgia’s impact rule: ‘In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.’” In other words, there must be “‘direct physical contact.’” Second, the representatives argued that a law license is a property right. The court disagreed and cited to a case that said it was a privilege, not a right.
The defamation cause of action was also rejected. The parties disputed the second element; under Georgia law, the statement must be “an unprivileged communication to a third party,” which requires a published communication. Although the list of names was published, the court threw out this argument because the list was not literally published by ILG. The court explained that even if ILG sufficiently contributed to the publication, the communication was nonetheless privileged, under what is called the “intracorporate privilege,” because ILG was under a contractual duty to communicate the test scores to the OBA.
The application of the economic loss rule was improper. First, the physical symptoms experienced by the examinees were sufficiently “physical.” We, as a society, have evolved beyond the idea that physical injuries are limited to broken bones and black eyes. Human beings can hurt, physically, in a variety of ways, including in the form of chronic headaches and nausea. “[A]lthough some of Appellants’ physical injuries . . . stemmed from their emotional distress,” the fact that an emotional injury occurred first should not be an impediment to recovery. Even if all of the injuries were rooted in emotional trauma, what difference should it make?
This case implicates broader questions about the legal showing required for the tort of negligent infliction of emotional distress. Should plaintiffs have to show direct physical contact when complaining of an emotional injury? Or, is this notion counterintuitive? The heightened requirement stems from our legal system’s reluctance to equate emotional injuries with physical injuries. More and more people have come to understand that mental health is just as important as a person’s physical well-being. Emotional injuries should not be minimized; vomiting and headaches traceable to a person’s emotions are not somehow less worthy of redress than a fractured wrist. Sometimes an emotional injury lasts longer and is more difficult to remedy than a physical one. For the foregoing reasons, the court should have found that the examinees suffered physical injuries, or in the alternative, that their emotional injuries were just as legally significant.
Further, the right to practice law should be recognized as a property right. Although it is an incredible privilege to attend school and receive an education, the path to earning a law degree requires significant time and money. Law school is an investment, like a piece of property. Not only does it cost thousands of dollars a year, but most people take out loans—loans that accrue interest. Additionally, many students accept volunteer positions in the legal field to gain the necessary experience. The impact of these monetary sacrifices transcend the individual. For example, the child of a law student may not be able to attend camp that year or their spouse may have to pick up a second job.
The time spent studying and learning the law is another significant consideration. No amount of money can make up for lost time—it is priceless. When preparing for law school exams and the bar, students “go into a cave.” In other words, studying takes precedence over time spent with loved ones. When the examinees were wrongly told that they failed the bar exam and began studying for the next one, they presumably missed out on birthdays and holidays. All because ILG’s software failed. The 90 examinees will never get that time back. For those reasons, the state of Georgia should recognize a law license as a property right. Because the examinees suffered damage to their person and property, the application of the economic loss rule was improper.
The class also should have been permitted to proceed with its defamation claim. The broad purpose of the tort of defamation is to prevent injurious, false statements. Because ILG’s faulty program directly triggered harmful, false statements, ILG should not have been granted summary judgment on a mere formality. Although ILG did not literally publish a list of successful examinees on its website, it was responsible for providing the OBA with the information. There would have been no test scores without ILG’s software; ILG was an instrumental participant in the communication process. Therefore, the court should have concluded that ILG’s contribution to the publication could potentially be enough to satisfy the second element at trial.
The application of the intracorporate privilege was also questionable in this case. Although organizations should ordinarily have protection when communicating information back and forth, this information did not stay between the OBA and ILG. Instead, the test scores were made public knowledge. And this was very damaging information. An examinee’s absence from the list indicated that he or she did not pass the bar—a monumental obstacle in the field. This public error likely hindered careers and tainted reputations. Thus, summary judgment was improper for both the negligence and defamation claims.
If the facts of this case are narrowly construed, it is about 90 examinees who were told that they failed the bar exam when they had really passed. But more broadly, it is about dedicating your life to something bigger than yourself and being wrongly told that you failed. Whether it be in the context of academics, athletics, politics, or business, all people can relate to having a dream and making sacrifices to achieve it. The examinees suffered an injury when, despite all the sacrifice, their dream was unfairly tarnished. The damage was physical, emotional, and the graduates were deprived of a hard-earned property right. Even though it is not certain that ILG would have been found liable at trial, the examinees were at least entitled to have their day in court.
 Murray vs. ILG Techs., LLC, No. 19-11607, 2020 WL 91546, at *2 (11th Cir. Jan. 8, 2020); Murray v. ILG Techs., LLC, 378 F. Supp. 3d 1227, 1233 (S.D.Ga 2019) (“The incidents giving rise to this action came to light on September 6, 2016.” Thus, for students who took the July 2015 exam, they found out about a year and one month later); Stephanie Francis Ward, Software company used in faulty Georgia bar exam scoring gets hit with lawsuit, American Bar Association Journal (September 4, 2016), http://www.abajournal.com/news/article/software_company_used_in_faulty_georgia_bar_exam_scoring_gets_hit_with_laws (“The false notification came after Murray took the July 2015 exam, according to the article, and he retook the test in February 2016.”) (emphasis added).
 Debra Cassens Weiss, Tech company accused of bar-exam grading glitch has no liability in test-takes’ suit, 11th Circuit says, American Bar Association Journal (January 9, 2020)http://www.abajournal.com/news/article/tech-company-accused-of-bar-exam-grading-errors-isnt-liable-to-those-wrongly-told-they-failed-court-says; Murray, 378 F. Supp. 3d at 1233 (“[T]he Georgia Board of Bar Examiners announced that ninety people who took the July 2015 and February 2016 Georgia bar exams—forty-five from each exam—were incorrectly assigned failing scores.”).
 Murray, No. 19-11607, 2020 WL 91546 at *3.
 Murray, 378 F. Supp. 3d at 1234; Murray, No. 19-11607, 2020 WL 91546, at *5.
 Murray, 378 F. Supp. 3d at 1234; Murray, No. 19-11607, 2020 WL 91546 at *4 (“The software was used by the OBA to calculate bar exam scores and communicate individual results of the July 2015 and February 2016 bar exams to applicants.”).
 Murray, No. 19-11607, 2020 WL 91546, at *5-6 n.2 (“The Bar Applicants (and the OBA) claim this was the result of an error in ILG’s software. ILG disputes this, insisting the error was the result of the OBA’s failure to execute properly the ‘steps’ for calculating the updated scores. However, this factual dispute is not relevant to our analysis here since, like the district court, we assume Appellee’s software caused the grading error responsible for the falsely reported failures.”).
 Id. at *6.
 Murray, 378 F. Supp. 3d at 1252; Murray, No. 19-11607, 2020 WL 91546, at *16.
 Murray, 378 F. Supp. 3d at 1234-35; Murray, No. 19-11607, 2020 WL 91546, at *2 (“In an amended complaint, the Bar Applicants alleged claims of negligence, attorney’s fees, negligent misrepresentation, breach of contract, strict liability (based on product defeat), negligent design, and defamation.”).
 Murray, No. 19-11607, 2020 WL 91546, at *9.
 Murray, No. 19-11607, 2020 WL 91546, at *7 (quoting O.C.G.A. § 51-1-11(a)); Murray, 378 F. Supp. 3d at 1241 (“The economic loss rule emerged in the products liability arena as a way to prevent individuals from receiving double recovery for the same wrongdoing.”) (citing Gen. Elec. Co. v. Lowe’s Home Ctrs. Inc., 279 Ga. 77, 608 S.E.2d 636, 639 (2005)); Murray, No. 19-11607, 2020 WL 91546, at *8 (quoting Flintkote Co. v. Dravo Corp., 678 F.2d, 942, 949 (11th Cir. 1982) (“‘the purpose of the rule . . . is to distinguish between those actions cognizable in tort and those that may be brought only in contract.’”)).
 Murray, 278 F.Supp. 3d at 1244 (quoting Dominic v. Eurocar Classics, 310 Ga. App. 825, 714 S.E.2d 388, 392 (2011)) (quoting J. Kinson Cook of Ga. v. Heery/Mitchell, 284 Ga. App. 552, 644 S.E.2d 440, 446 (2007)); Murray, No. 19-11607, 2020 WL 91546, at *4.
 Murray, 378 F. Supp. 3d at 1243-1244 (citing Unified Servs., Inc. v. Home Ins. Co., 218 Ga.App. 85, 460 S.E.2d 545, 547 (1995); (Bates & Assocs., Inc. v. Romei, 207 Ga.App. 81, 426 S.E.2d 919, 921 (1993), et al.); Murray, No. 19-11607, 2020 WL 91546, at *8 (citing Bates, 426 S.E.2d at 921); (Bulmer v. S. Bell Tel. & Tel. Co., 317 S.E.2d 893, 895 (Ga. Ct. App. 1984)).
 Murray, No. 19-11607, 2020 WL 91546, at *8-9 (quoting O.C.G.A. § 51-1-11(a) (citing Flintkote, 678 F.2d at 949)).
 Murray, 378 F. Supp. 3d at 1243 (quoting In re Arby’s Rest. Grp. Inc. Litig., No. 1:17-CV-0514-AT, 2018 WL 2128441, at *12 (N.D. Ga. Mar. 5, 2018)).
 Murray, 378 F. Supp. 3d at 1243 (citing Bulmer, 317 S.E.2d at 895).
 Murray, No. 19-11607, 2020 WL 91546, at *12.
 Murray, 378 F. Supp. 3d at 1244 (citing Bates, 207 Ga.App. 81, 426 S.E.2d at 921).
 Murray, No. 19-11607, 2020 WL 91546, at *12-13.
 Id. at 13-14 (quoting Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82, 84 (Ga. 2000)).
 Murray, No. 19-11607, 2020 WL 91546, at *14 (quoting Posesy v. Med. Ctr.—W., Inc., 361 S.E.2d 505, 506 (Ga. Ct. App. 1987)).
 Murray, 378 F. Supp. 3d at 1248.
 Id. (quoting Eckles v. Atlanta Tech. Grp., Inc., 267 Ga. 801, 485 S.E.2d 22, 26 (“‘The right to practice law is not a natural or constitutional right, nor an absolute right or a right de jure, but is a privilege or franchise.’”).
 Murray, No. 19-11607, 2020 WL 91546, at *17.
 Id. at *15-16.
 Id. at *15 (quoting Boyd v. Disabled Am. Veterans, 826 S.E.2d 181, 184 (Ga. Ct. App. 2019) (quoting O.C.G.A. § 51-5-1(b)).
 Murray, 378 F. Supp. 3d at 1252 (quoting Doc. 77 , pp. 7-8) (“Plaintiffs do not dispute that the OBA actually released the results, but instead argue that because Defendants’ software was ‘so integral to the defamatory communications [ ] the software [ ] published the results.’”). Murray, No. 19-11607, 2020 WL 91546, at *16 (“it does not change the fact the allegedly defamatory information at issue here was ‘communicat[ed] to a third party’ by the OBA, not Appellees.”) (quoting Boyd, 826 S.E.2d at 184)).
 Murray, 378 F. Supp. 3d at 1252-53 (quoting Koly v. Enney, 269 F. App’x 861, 864 (11th Cir. 2008) (quoting Kurtz v. Williams, 188 Ga.App. 14, 371 S.E.2d 878, 880 (1988) (“‘[W]hen the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication . . . .’”)); (quoting Ass’n Servs., Inc. v. Smith, 249 Ga.App. 629, 549 S.E.2d 454, 463 (2001) (“Where a statement is made ‘in performance of [a] private duty to [a] client,’ the communication is privileged pursuant to O.C.G.A. § 51-5-7(2).”).
 Brief of Appellants, at 30, Murray v. ILG Techs., 2019 WL 2866628 (11th Cir.) (emphasis added).
 Murray, No. 19-11607, 2020 WL 91546, at *16 (“the Bar Applicants argue the transmission of the incorrect bar results from the software to the OBA is itself a ‘publication[.]’”).