That’s One Expensive Comma

My 10th grade English teacher would have loved to have this real-world evidence that grammar truly matters:

In May 2014, Medfusion sued Allscripts, alleging breach of contract and other claims arising from an agreement to create and market an online patient portal for health care providers. Medfusion claimed Allscripts didn’t meet its commitments under the contract and sued for more than $4 million in damages…

According to the court’s March 31 ruling, the contract stated that “in no event shall either party be liable for any loss or damage to revenues, profits, or goodwill or other special, incidental, indirect, or consequential damages of any kind, resulting from its performance or failure to perform under this agreement …”

Allscripts argued that the comma before “or goodwill” is an Oxford, or serial, comma that sets apart three independent categories of damages barred by the agreement: revenues, whether direct or indirect; profits and goodwill.

Medfusion, on the other hand, argued the “or other … consequential damages” language modifies “revenues, profits, or goodwill,” meaning these categories of damages are only excluded to the extent that they are considered consequential, or indirect.

I’ve read this three times and I’m still confused, but truth be told I’m one of those rare English majors who wouldn’t recognize a prepositional phrase if it sat in my lap. Suffice it to say that law firms might want to employ a strong copy editor just to be safe.

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