In Defense Of Tort Law (Why Tort Reform Is Not Necessary)

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In Defense Of Tort Law (Why Tort Reform Is Not Necessary)

Post by Doktor Avalanche »

What is tort law?

Tort law is simple at a general level and difficult to precisely define. Tort comes from a Latin word meaning “twisted” or “turned aside”, so by this meaning a tort is an act that is turned aside from the standard of conduct that is considered proper – a wrongful act. If you run an old lady down in a crosswalk by driving like an idiot, punch your neighbor in the nose (something I’ve considered with respect to my neighbor) you have committed a tort. All of these are wrongful acts for which the victim can receive an award of money damages.

You get a pretty good idea of what tort law is about from the before-mentioned cases but you’ll notice that something is missing from them because they don’t answer the fundamental question about tort law: if tort law is a sanction against wrongful conduct, how do you know what wrongful conduct is? Have I committed a tort when I punched my neighbor in the nose (next time he plays that god awful reggaeton too loud I’ll consider it)? How about if I drove too fast, too recklessly and ran down that old lady in the street?

Questions like these point out two important features of tort law. First, some cases are easy to decide and some cases are hard. Second, tort law is as much a process as it is a body of rules. The essence of tort law is the application of general principle – “everyone must use reasonable care not to injure someone else” – to particular cases, like a car accident on a rainy night. How these rules are applied – the system in which responsibility is shared by courts and juries – is just as important in tort law as the rules themselves.

For the longest time, tort litigation nearly involved cases brought by an individual plaintiff against an individual defendant stemming from an individual event. At most, small groups would be on one side of the litigation or the other; the driver and his three passengers would sue the driver of the other car who caused the accident, or a patient in a hospital injured by an operation would sue the surgeon, the anesthesiologist and the hospital. These cases still represent the bulk of tort litigation, but recently, cases involving many people (mass torts) have become more important.

Mass torts involve multiple injuries produced by a single accident like an explosion from a chemical company (such as the infamous Union Carbide accident in Bhopal, India) or the same kind of conduct repeated over time, such as the use of asbestos or the sale of a defective and dangerous drug.

The results are always dramatic: 6000 victims of the September 11th tragedy, 20,000 breast implant cases, almost 800,000 asbestos cases, 600,000 claiming injury from the diet drug fen-phen (with the potential of another five million) and, recently, 306 cases against Purdue Pharma, the company that makes the painkiller OxyContin (with the recent admissions from Purdue the number of complaints is expected to rise).

A mass tort poses a unique set of challenges to the system. One challenge is dealing with the sheer number of cases that can easily create a bulge of litigation that threatens to overwhelm the courts and delay adjudication of other cases. Another problem is dispensing justice to victims with different injuries who sue at different times.

Defendants in mass tort claims often resort to bankruptcy to escape the burden of liability. The court then has the burden of determining who gets what; if early plaintiffs are compensated there may be little or nothing left for those whose injuries manifest later.

Toxic torts – mass torts arising from exposure to dangerous chemicals, drugs or other substances – pose problems of causation because it’s difficult to tie the risk posed to specific injuries which may have complicated origins which may come up long after exposure.

Here’s why we need tort law:

Injuries happen. People die. A driver falls asleep at the wheel and veers his truck into oncoming traffic and wipes out your family. Someone falls down a flight of stairs. Operations aren’t always successful.

All too often, however, people are injured or killed when someone else is responsible. A homeowner fails to repair cracks in his sidewalk and a passerby trips and falls. Doctors misdiagnose and mistreat patients. Passengers are killed in an apparent minor car crash because the gas tank ruptures and explodes. Shipyard workers who use asbestos contract horrible diseases of the lung.

Sometimes a bizarre series of unfortunate events occurs: A ship tears loose from its moorings, drifts downstream and crashes into another ship, causing that ship to break loose from its moorings; both ships continue downstream and collide with a bridge that forms a dam causing ice and water to back up, flooding property upstream and delaying an ambulance carrying a vital organ needed for a patient in the hospital on the other side of that bridge who subsequently dies as a result of that delay.

There are three reasons why we need tort law. First, people would have little or no incentive to avoid injuring other people. Secondly, the victims of accidents would be left to their own devices to cover medical expenses, lost wages, property damage and other consequences of injuries they suffer (for most the cost would be significant; for the unlucky few, catastrophic). Third, it wouldn’t be fair that people could freely inflict harm on others, intentionally or otherwise, and not have to suffer the consequences.

Sometimes there is a perception that tort law is out of control and that it needs to be reformed. Recognizing this, it’s nearly impossible to speak of tort reform without referring to that most famous case of “lawsuit abuse”; I speak of none other than the Evil One, The Daughter Of Satan herself – Stella Liebeck!

GASP!!

Okay, that’s a little over the top. Stella’s parentage not withstanding, I don’t think she’s evil but there are those who see her as the poster girl of a system gone horribly wrong and in dire need of an overhaul.

Ms. Liebeck, seventy-nine years old, was a passenger in her nephew’s car when they decided to stop off at a McDonald’s in Albuquerque, New Mexico to purchase a forty-nine cent cup of coffee. As she placed the cup between her legs to remove the lid to add cream and sugar, she dumped the coffee in her lap and burned herself – badly.

Quite badly. As in, third-degree burns requiring a painful skin-graft procedure and a week in the hospital.

What follows is a picture of the injuries sustained by Ms. Liebeck. I have, for decency's sake, wrapped this image in a NSFW flag. If you're the kind of person who is squeamish or easily upset by images of human injury and suffering, please look away.
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Tort reformers are quick to bring up the Liebeck case as prime example that we, as a society, have degenerated to the point where we have abdicated our common sense and responsibility. Everyone knows that coffee is hot and, if you spill it in your lap, you will get burned. Because of this (advocates of tort reform insist), judges and juries have run wild in allowing plaintiffs to pass their unfortunate circumstances on to someone with deep pockets.

I don’t see it that way. In fact, I take the contrary position that Ms. Liebeck’s case is evidence of how well the system works.

What is not generally known outside the circles of judges and attorneys is that McDonald’s had received over 700 complaints about the temperature of the coffee it served and had quietly settled many of these complaints to the tune of $500,000. The company served its coffee at a temperature twenty degrees hotter than its competitors, a temperature that its managers admitted was too hot to drink right away and hot enough to cause burns.

Liebeck initially was willing to settle the case for the cost of her medical expenses, but McDonald’s decided to play hardball and refused. The jury in the resulting trial figured that $2.7 million was the amount McDonald’s made from two days of coffee sales so it used that amount to factor the punitive damage award. The jury also found that Liebeck was 20% responsible for her injuries because she wasn’t careful, so it reduced the damages awarded to her accordingly, and the judge further reduced the damage award to $480,000. Only after this case and the publicity it generated did McDonald’s turn down the temperature on its coffee. This case also influenced other potentially dangerous conduct: Wendy’s reduced the temperature of its hot chocolate – hot chocolate served mostly to children.

In my opinion, the system worked. A wrongdoer was forced to compensate an injured victim and remedy its dangerous conduct. Any changes in tort law that come ought to come through a time-honored and tested process of methodical development.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by rogfulton »

In the case you have cited, yes it worked as it should.

Most of the time I hear cries of outrage, though, it involves something along the lines of a case I heard of while I was in college in the late '70's. What was told to us is alleged to be based on the filings in the case but could have just as easily been written to illustrate a point in the logic class I was taking.

A farmer needed to repair the roof on his barn. It being late in the year, there was frost on the ground as he placed his extension ladder against the shadowed side of the building and climbed up to start the job, apparently not aware of what he stood the ladder on. About noon or so, he climbs down to go to lunch and, on his return, he again scales to the heights to continue his task. Of course, as the day progressed, the shadowed side of the barn was no longer protected from the warming rays of the sun.

Now comes the end of the day. Our hero, having completed his task, starts down the ladder, still believing he had correctly placed the foot of the ladder in a safe place. Part way down, he realizes his error as the ladder slides away from the barn and he falls, receiving severe injuries.

His claim against the ladder company was based on the omission of a warning on the ladder that he not place the base of the ladder on top of frozen cow patties. And he won enough that the ladder company went out of business. But someone had to pay because it wasn't the farmer's fault.

Again, as I said above, this was something told to us students in a class on logic. I was not a law student. I had no way to research what we were told and do not have any idea where it supposedly happened other than the area was regularly frozen for most of the winter and it was rural.

You made your point that the case most people point to didn't turn out the way many people think it did. And we could also point to the case of the DC judge who lost just about everything he had worked for as a result of the stupendous size of the claim over his lost pants.

Is there a line, past which even you would say "This is just ridiculous"?
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Brandybuck »

"Tort reform" does not mean throwing out the whole system and replacing it with a populist sound bite. It means fixing the problems in the system. And if you think it is perfect with no problems, you've been smoking something. We can argue whether the problems are large or small, but there are problems.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

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Brandybuck wrote:We can argue whether the problems are large or small, but there are problems.
What do you believe those problems to be?
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Brandybuck »

wserra wrote:What do you believe those problems to be?
I should have written more, but events took me away from the keyboard for a bit.

I see a few problems:

* Bad reporting on cases. The coffee spill for a prime example. No tort reform can fix this however, it's up to the media to fix their culture of soundbite sensationalism. It may be something we just have to live with.

* The assumption that every injury has a human cause (or at least a human facilitator). From my perspective this thinking is deeply ingrained in legal system. Sometimes shit happens. Sometimes the injured party is the party at fault. Sometime there is no one at fault. The legal profession as a whole seems unwilling to accept this bit of common sense. Here in California we have Deep Pockets which exacerbates the problem by assuming not only is there someone always at fault, but that there is a wealthy someone always at fault.

* Bad incentives. While I don't think a loser-pays system is the answer, I do think that there are perverse incentives for attorneys to take on bad cases in pursuit of a big win. This is the area I would focus tort reform on.

* Finally, we have a tort system based not on facts and evidence, but on the sympathetic value of the plaintiff. A change in how juries are selected can help to balance this.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Judge Roy Bean »

Any attempt at tort reform has to reintroduce the responsibility for the DOJ to punish corporations and the executives and directors responsible for not only allowing, but fostering a culture of corruption.

Unless and until prosecutors are free to pursue the now-protected class, the only recourse for victims is via tort cases.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Kestrel »

Some years ago I was working at a law office and got to see how he handled personal injury suits. He had a boilerplate letter he'd send out on behalf of whomever walked in the door. The top part of the letter was customized with client information. The rest of the letter was the same in all cases: "Liability is clear. You are at fault for my client's injury. Pay up or be sued." He frequently took on cases where liability was anything but clear, and made a lot of money settling them out of court for 25% to 50% of what he might have won at trial if they had any real merit. Occasionally he would land a good defensable case, take it to trial, win, then buy a bunch of TV advertising.

Maybe it's anecdotal but I have the impression too many defendants decide to buy off the plaintiff and settle, even when they believe they are not a fault, because it's cheaper than defending. Plaintiffs can hire a lawyer on a "no win, no pay" contingency basis; there's minimal money-out-of-pocket risk for a plaintiff filing a marginal suit. The defendants almost always have to bear the costs of defending, so even when they win they lose.

Some sort of a "loser pays" system would reduce that; the plaintiff's lawyers like the fellow I described would be less likely to pursue marginal cases if they knew they risked having to compensate the defendant for their costs. That's the kind of Tort Reform I'd like to see.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by The Observer »

Judge Roy Bean wrote:Unless and until prosecutors are free to pursue the now-protected class, the only recourse for victims is via tort cases.
The problem is the ramifications for the rest of us in terms of higher costs for insurance, inspections, permits/licenses, and the like. Using the courts as a system to make every plaintiff whole again is very expensive in the long run, even if the plaintiff doesn't win.

I have sat as a jury member in three cases where the plaintiffs had no case, but had attorneys willing to take a gamble that they would win. All resulted in deliberations of less than 1/2 a day on cases where the plaintiff was asking for $50,000 or more for basically injuries caused by their own actions and no responsibility of the defendant, who happened to be either public agencies or a commercial business. The third case involved a dentist who was accused of drilling and filling one tooth so bad that according to the plaintiff, would require that she receive full upper and lower implants; the plaintiff had a long medical history of bruxing/grinding and had worn down her teeth over the years. My panels found for all of the defendants.

All three of these case sailed through the mandatory mediation process, depositions, and voir dire. At no point did it occur to the plaintiffs or their attorneys that these cases had no legs. There had to be considerable legal costs incurred by the defendants to avoid having to pay anything, but I am sure at some point settling would have been an option if the plaintiffs were not so greedy.

Somewhere along the line, we should be looking to make the defendants who win whole.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Doktor Avalanche »

Judge Roy Bean wrote:Any attempt at tort reform has to reintroduce the responsibility for the DOJ to punish corporations and the executives and directors responsible for not only allowing, but fostering a culture of corruption.

Unless and until prosecutors are free to pursue the now-protected class, the only recourse for victims is via tort cases.
/signed
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Doktor Avalanche »

rogfulton wrote:
You made your point that the case most people point to didn't turn out the way many people think it did. And we could also point to the case of the DC judge who lost just about everything he had worked for as a result of the stupendous size of the claim over his lost pants.

Is there a line, past which even you would say "This is just ridiculous"?
You speak, of course, of Pearson v. Chung.

http://news.bbc.co.uk/2/hi/americas/6238364.stm

Was it ridiculous? Perhaps. I would think that if the case had absolutely no merit whatsoever it never would have gone to trial.

The courts have to respond to a filing, even if such a response is to tell the plaintiff to go pound sand. Such was the case with a certain time-travelling, zionist-eliminating, lawful money redeeming, Jesus suing individual we all know.

A lot of filings come before the courts every day. A lot of them get turned down flat.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Arthur Rubin »

Doktor Avalanche wrote:You speak, of course, of Pearson v. Chung.

http://news.bbc.co.uk/2/hi/americas/6238364.stm

Was it ridiculous? Perhaps. I would think that if the case had absolutely no merit whatsoever it never would have gone to trial.
If he'd asked $100 or so, it might have been reasonable. Of course, then, we'd never have heard of it.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by wserra »

Brandybuck wrote:* Bad reporting on cases.
As you say, not a problem "tort reform" will solve.
* The assumption that every injury has a human cause (or at least a human facilitator).
The legal system has no such assumption. I see defendants win summary judgment based on absence of causation every day.

Jurors may in fact so assume - but this is an issue that competent defense counsel turn to their advantage in voir dire. A few years ago, I tried a medmal against a really terrific defense lawyer. His client, a neurosurgeon at a well-known and widely respected hospital here, had left a dural suture needle inside my client's skull after performing a meningioma (benign brain tumor) resection. Liability was pretty clear - the standard of care does not permit leaving needles behind - so they defended on damages. That was, in fact, the weak point of my case, since my client of course had to have the needle removed, and an infection it caused cleared up, but then was basically OK. It was going to be difficult or impossible to show any permanence. During voir dire, my opponent admitted the malpractice, but then asked every prospective juror if s/he believed that, just because his client left a needle in my client's brain, he automatically owed my client lots of money. Many, many jurors - the ones I would want - said "yes", and persisted in that answer even following the judge's explanation that this wasn't the law. They were, of course, successfully challenged for cause. It made me nuts, since it cost me my best jurors, but the judge was right to excuse them.

So not only does the system not have a bias in favor of unproven causation, but when competently used it corrects for jurors' bias.
* Bad incentives. While I don't think a loser-pays system is the answer, I do think that there are perverse incentives for attorneys to take on bad cases in pursuit of a big win. This is the area I would focus tort reform on.
I spend most of my time prosecuting medmals. At least here in New York, those cases are very well defended, by insurance companies that have virtually unlimited resources and are more than willing to use them to discourage malpractice suits. Moreover, the cases are very expensive to prosecute, as able doctors charge a lot for their time. A medmal that goes to trial can easily cost $50K to $75K in disbursements, in addition to hundreds of hours of time. In my field, there is a term of art for "attorneys [who] take on bad cases in pursuit of a big win" - "out of business". Albeit perhaps to a lesser degree, that is true for the tort field in NYC generally. Carriers here do not pay more than nuisance value (say $5K-10K) to dispose of nuisance suits.
* Finally, we have a tort system based not on facts and evidence, but on the sympathetic value of the plaintiff. A change in how juries are selected can help to balance this.
Overstated, but there is something to that. A case with a sympathetic plaintiff is surely worth more than one without. Other than to tell juries to ignore sympathy - routine in every case - what do you propose to do about that? Order the good-looking plaintiffs to wear bags over their heads? Direct the nice ones to act like jerks?
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by wserra »

Judge Roy Bean wrote:Unless and until prosecutors are free to pursue the now-protected class, the only recourse for victims is via tort cases.
Amen.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by The Observer »

wserra wrote: That was, in fact, the weak point of my case, since my client of course had to have the needle removed, and an infection it caused cleared up, but then was basically OK. It was going to be difficult or impossible to show any permanence. During voir dire, my opponent admitted the malpractice, but then asked every prospective juror if s/he believed that, just because his client left a needle in my client's brain, he automatically owed my client lots of money.
Did your client deserve "lots of money?" I am not understanding, given the lack of evidence of permanent damage, why this case was in court. Seems to me that the right thing to have happened was for the doctor to be responsible for paying for the costs of the removal of the needle and a sum to cover the pain and suffering. Of course that might be the problem right there if there was a difference of opinion about what was a just amount.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Judge Roy Bean »

The Observer wrote: ... Of course that might be the problem right there if there was a difference of opinion about what was a just amount.
Indeed. And the entity (the insurance company) faced with having to make the payment is duly bound to protect its interests and is well-equipped with experts to decide what they will or wont litigate. That's what they do for a living.

On the other side, the "victims" of tortious acts have little or no exposure to the civil court system until they decide to sue. They often don't understand the tediousness of the process and may never have even been deposed before, let alone testified in court. They are often financially at-risk and/or the alleged act and resulting conditions have pushed them to the brink or even into bankruptcy. Their income may have been impacted or property destroyed and they can't collect for lost wages involved in the process of litigation.

For them, experts are a major expense. A deposition is not enough if a case proceeds to trial - the expert must appear and gets paid to do so, including travel expenses.

The newsworthy cases are the extremes that tort-reform advocates point to but there are literally thousands of others that go unnoticed. Some portion of those would be unnecessary if the entity responsible for the damage had the proper procedures in place (and the willingness) to address and correct the problem. In some cases I'm aware of, there is a history of predicate acts that had they been addressed, would have precluded the repeat behavior that brought about the litigation.

To me, a civil suit is the tip of the iceberg; it's a symptom of something having gone wrong and if the company is involved in more litigation than their peers it should be a wake-up call for the Directors.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Prof »

And please do not suggest binding arbitration as an alternative. In my experience it is more expensive than a trial and just as unpredictable.

One comment on Wes and JRB's statements. In my experience, on both sides of the docket, judges are very reluctant to grant summary judgment even where clearly justified. Bad cases, which should be blown out of the water, linger, get sent to mediation, even go to trial, because judges don't want to do their jobs.
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

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The Observer wrote:Did your client deserve "lots of money?"
My clients deserve at least what I can get for them, whether by trial or settlement.
I am not understanding, given the lack of evidence of permanent damage, why this case was in court.
I didn't say there wasn't any, I said it would be difficult, perhaps impossible, to show. And why does there have to be permanent injury for a case to be "in court"? While you can't argue this way to a jury, please tell me how much someone would have to pay you for you to permit him to perform brain surgery on you. I could surely prove the unnecessary (second) surgery and infection.
Of course that might be the problem right there if there was a difference of opinion about what was a just amount.
There usually is. BTW, the case settled during trial (for what I regard as a fair amount).
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Re: In Defense Of Tort Law (Why Tort Reform Is Not Necessary

Post by Prof »

To add to JRB's comments above about Insurance Companies.

There is a lot of criticism about Plaintiff's (tort) Lawyers, who are often incorrectly referred to by conservatives as "trial lawyers," a much broader term including folks like me who have spent a lifetime in various courtrooms and have never tried a tort case.

There should be an equal amount of criticism about insurance companies and their practices. I am involved in a matter involving a mortgagee's (lender's) title insurance claim. Two different lenders claim to hold the first lien on the tract of real property. (Long story of fraud by the buyer/borrower and a title company he controlled is omitted.) Both lien holders are insured by the same title insurance company. Both have been denied any but a very limited representation, almost worthless, by the insurance company, which also denies any significant liability (there's at least 2.5 million at stake).

The insurance company refuses to explain its decision to limit representation and refussal to "clear the title," which is what its policy promises to do.

It has, however, hired three sets of lawyers to appear on its behalf to monitor, complain, and interfere at hearings.

In my limited experience, a large number of similar cases, including tort cases with really awful circumstances, result from the failure of the insurance company to honor the terms of their casualty policies.
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