Tort reform is a scam that punishes people to protect profits.
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I recently wrote about how Mississippi passed a bunch of "reforms" but still rank near the bottom of the Chamber's list. Here's some additional evidence that the legal climate in a state isn't nearly as important to attracting new business as such old standbys like tax breaks and geographic location: JFP: Most of the people I know, back in 2004 were really intrigued with the idea of tort reform because we were led to believe that our insurance rates would go down, but nobody that I can think of are bragging that their rates went down. I know mine havenҒt. Were we supposed to actually benefit from that or was tort reform aimed to benefit somebody else? Ross: Mississippi has benefited. I gave you Toyota as an example. After we fixed our legal system, it was no longer an obstruction to them coming here. Former Gov. Ronnie Musgrove told the JFP that the issue of the states legal climate never came up in numerous conversations he had with Toyota executives in 2003. ғToyota was comfortable with our business climate, Musgrove said. ԓWe had passed significant tort reform in 2002, and the Toyota proposal came in 2003. It just was not an issue for them. Toyota Senior VP, Dennis Cuneo said in a company press article that Toyota passed over Mississippi for an $800 million Toyota plant in 2003 because of a number of factors unconnected to the stateԒs legal climate. According to Cuneo, one of the crucialӔ factors in the decision to pick San Antonio was the big money Texas committed to build two separate rail accesses for the plant. The state also committed $116 million in training and tax breaks for the plant. Arkansas officialswho had also been competing for the plantחadmitted to the Associated Press in 2003 that Toyota executives told them that the plant in Texas would be a doorway to a virtually untapped market of pick-up truck buyers in Mexico and Latin America. Texas, itself, was the biggest market of pick-up sales in the nation, and Toyota was looking to seduce Texans with a new home team. Finally, the legal climate in Texas, according to the U.S. Chamber of Commerce, was not so rosy at the time either, with Texas ranking No. 46 out of 50 in judicial fairness in February of 2003the same month that Toyota decided on San Antonio. (Emphasis added.) Source: Mississippi StateDesk Not sure why the formatting is goofy. But it's still not as goofy as the notion that the best way to attract new business is to gut your state's civil justice system.
I do not presume to speak for Professor Silver, but I wanted to respond to the following points raised by Ted Frank in response to Silver's article. What we do know from Silver's dataset is that insurers do ignore insurance limits and settle for above policy limits a significant percentage of the time. Silver's hypothesis works only if one assumes the policy limits are firm; the alternative hypothesis works even if the policy limits are not firm—and Silver's dataset shows that, indeed, the policy limits are not absolute. Silver provides no explanation why insurers would settle some meritorious cases at policy limits and others above policy limits; it's not clear to me that any such explanation is possible. (Emphasis added.) Source: PointofLaw.com | PointOfLaw Forum: Charles Silver on insurance limits First, I don't mean to quibble, but Silver wrote, "Payments above the policy limits, which appear to the right of the spikes, were present in about 2% of the cases." If Ted believes that 2% is a "significant percentage," that's his prerogative... but I bet that if a drug caused side effects for 2% of its users, Ted wouldn't consider that to be significant. I've come up with a possible explanation as to why insurers would settle meritorious cases above policy limits. Eric Turkewitz recently wrote about the high costs of bringing a medical malpractice case; buying medical records, retaining experts, taking depositions, etc. Plaintiffs aren't the only parties that have to bear these costs. If an insurance company believes the plaintiff has a a strong case and is likely to be awarded a sum that meets or exceeds the policy limit, the insurer will be willing to settle for an amount that is less than the policy limit plus the cost of defending the case. For example, if the doctor in question has a $250k policy and the insurer expects the litigation costs of going to trial will be $50k, the insurer will come out ahead if it settles the case for even $290k, which exceeds the policy limits. The insurer will also have to take into consideration the potential cost of any appeal(s) when determining what amount to settle a case for. Additionally, if a plaintiff is willing to accept a settlement that includes periodic payments, the insurer might be willing to settle for more than the policy limits in order to take advantage of the benefits of periodic payments. Update: Ted is right, Professor Silver's dataset revealed that more than 2% of cases did settle for excess of policy limits. We also shared a nice series of emails in which we discussed possible scenarios where it makes financial sense for insurers to settle cases above policy limits. I'd share them with you, but Ted asked me not to repost his emails. Suffice it to say, there actually are some situations where it is in the financial best interest of an insurer to settle a case above policy limits. Cross-posted to TortDeform
As you may know, the U.S. Chamber of Commerce puts out a bogus study every year that purportedly ranks the civil justice system in every state. The rankings are determined by surveying various corporate attorneys and asking their opinions as to the fairness of every state's justice system. To put that in perspective, it wouldn't be much different than asking career criminals to rate the fairness of every state's criminal justice system. But I digress. Perhaps the biggest problem with the U.S. Chamber's study is that a state's ranking doesn't seem to change very much even when a state passes the "reform" measures advocated by the Chamber. For example: Notwithstanding the ballyhoo when tort reform was enacted by the 2004 Legislature that it cured what special interest groups called Mississippi's cesspool of jackpot justice, it seems those same groups now don't rate the state's reforms very highly... The U.S. Chamber of Commerce, after pouring $1 million into Mississippi's 2000 Supreme Court races to elect its handpicked candidates. in 2003 rated Mississippi 50th in civil justice climate... Mind you, in 2002 under Democratic Gov. Ronnie Musgrove, state lawmakers enacted a series of tort measures sought by the insurance industry. One limited non-economic damages to $500,000 until July 1, 2011, and scaled the limit up to $1 million by 2017; another reduced to two years the time in which suits could be brought against nursing homes; and another granted liability immunity to a number of health care providers. But the reforms had not satisfied the U.S. Chamber and some other groups. Republican candidates in 2003 latched onto "tort reform" as a catch-phrase to get elected. It didn't take long for newly-inaugurated Republican Gov. Haley Barbour, who campaigned for tort reform, to get the 2004 Legislature to do the Chamber's bidding. Barbour won enactment of a fixed $500,000 cap on pain and suffering damages in medical malpractice cases and a $1 million cap on all others, and also gave retailers a shield against product liability lawsuits... But the U.S. Chamber of Commerce itself has now let the air out of the Mississippi tort reformers' balloon. Recently the Chamber's Institute for Legal Reforms (which initially stirred the pot on reform by ranking Mississippi 50th in 2003) in its 2007 ranking put the state's legal climate at only 49th. Source: U.S. Chamber lets the air out of Miss. tort reformers' balloon - The Clarion-Ledger Mississippi passed damage caps, elected pro-business anti-consumer judges, granted various immunities, and reduced statutes of limitations and only increased from 50th to 49th? States ranked far higher that Mississippi in the Chamber's study have far fewer "reforms" in place. Since there doesn't appear to be any correlation between a state's ranking and it's "reform" measures, the study should not be used as evidence that a state needs to pass any of the "reform" measures pushed by the Chamber. Cross-posted to TortDeform
I wasn't surprised that an attorney who writes for "The Conservative Voice" would praise Bush's recent Executive Order that bars Federal agencies from using contingency fee contracts. I was surprised that such an attorney would have no idea how contingency fees work. The media, relatively speaking, has all but ignored the EO, the excised text of which follows. How few people, otherwise reasonably informed, knew that the Federal Government sometimes retained attorneys to litigate upon a contingency-fee basis! Many States, of course, do likewise. The fees so earned by and large are minimal compared to the millions and multi-millions of dollars collected by the more high-flying “trial lawyers.” However, they are fees paid by taxpayers. Source: “Hail to the Chief,” for Saving Taxpayers from Payment of Contingency Fees by Marion Edwyn Harrison Under a contingency fee agreement, the attorneys are only compensated if they obtain a monetary recovery. Their fee comes from that recovery, not the pocket of the taxpayers. Because a contingency fee agreement is the epitome of "pay for performance," they tend to motivate attorneys to zealously and aggressively work to obtain a recovery for their client. In fact, that's the reason this EO was signed - because government attorneys and their contracted attorneys are supposed to remain impartial, and not be zealous or aggressive. For better or worse, taxpayers will now be forced to pay high hourly rates to outside counsel, and pay them regardless of how effective the attorney is. Now, rather than having an incentive to quickly recover a lot of money for the taxpayers, outside counsel will have an incentive to make cases unnecessarily complicated and to prolong them as much as possible to accrue as many billable hours as possible, all at the taxpayer's expense.
Professor Charles Silver has posted about his own experience with medical malpractice, and has been responding to comments. One of his responses warrants a post here: It continues to be remarkable to me how willing people are to stake out positions without knowing the facts. Judging from his (her?) most recent post, Chris seems exceptionally bright and well educated. Yet, Chris was too eager to reach a conclusion about the merits of my hypothetical malpractice case. I haven’t reached a conclusion myself, and I’ve lived with the injury for over two months. In these Internet discussions of tort reform, it seems to be a sin to utter the words “I don’t know.” In real life, of course, knowing that one does not know something is often important. Source: How Much Malpractice Coverage Does Your Doctor Have? | TortDeform I wish Professor Silver the best and hope his condition improves.
More evidence that med mal insurance rates depend on a lot more than just the tort system. Good news for all concerned. SVMIC, the doctor-owned professional liability insurer, has announced a rate reduction. You probably won't read about falling medical liability insurance rates in the newspaper, but you can tell your friends and neighbors that rates are dropping even though the Legislature has not placed caps on damages in medical malpractice cases.
Source: Day on Torts: SVMIC Lowers Rates
The post is also interested because it mentions actual rates charged to doctors by SVMIC.
TortDeform readers might remember the name Nina Mason as the creator of the innovative Georgia Civil Justice Foundation campaign to educate the public. It distresses me greatly that newspapers as well-respected as The Wall Street Journal would publish hogwash like “The Tort Tax” without bothering to check the facts. These articles are nothing more than misleading propaganda designed to sell books, capitalize on the politics of fear, and help push the democracy-dismantling agenda known as “tort reform.” The article begins with this bald-faced lie: Economists have long understood that America’s tort system is a serious drag on the nation’s economy. Economists understand no such thing. The truth is that America’s civil justice system, unlike those in other countries, is designed so that the lion’s share of the financial burden rests where it should: on the wrongdoer, not the taxpayer. Consequently, the public tax burden for our liability system is a mere fraction of what citizens pay for civil legal services in England, France, Germany, and Canada, among others. Notice how “tort reform” advocates never mention that “fact”? But they constantly mention the bogus Tillinghaust-Towers study. Highly regarded, as McQuillan and Abramyan claim? Certainly not. Widely-cited by tort-reform pundits bent on misleading the public? You betcha. Source: Lex Communicator » Blog Archive » There's no such thing as a "tort tax" I wish her the best of luck with her business, and will definitely keep an eye on her blog. You should too!
If anyone has a copy of this ad, I'd love to see it. It doesn't appear to be in my local edition of the USA Today. The American Association of Justice placed advertisements in USA Today, including the Philadelphia edition, urging doctors to ask their insurer a simple question: “Why do my rates keep going up while your claims payments keep going down?” Source: Report Shows Malpractice Insurers Price-Gouging Doctors and Driving Up Cost of Care | Tortdeform The article references a study conducted by the former Missouri Insurance Commissioner. The study was funded by the AAJ, which no doubt means "reformers" are going to dismiss it as being biased. If only they'd also dismiss the many studies funded by the insurance industry...
The following post from Greedy Trial Lawyer reminded me of a case I once worked on: Utility poles do not inspect, maintain or repair themselves. Utility companies do that (or, are supposed to do that) on some periodic or regular basis. But, sometimes a pole is totally neglected for 46 years. Then, a lineman is sent up the pole. Source: Qwest's $39.5 Million Inspection Program - Greedy Trial Lawyer I was working as a paralegal on a case in which a couple of teenagers on their school lunch break ran into a telephone pole after skidding off a rainy road. The pole cracked and fell on the roof of their car, seriously injuring one of them and moderately injuring the other. During the course of the investigation, we found out the pole was put in during the 1930's and the utility company had no inspection records for it at all. To their credit, the company was in the process of replacing the poles in the area, but they hadn't quite gotten to that one. The plaintiffs in GTL's post got $39.5 million. Our firm referred our pole case to another firm, and I resigned shortly thereafter, so I have no idea how much money, if any, our clients received.
What's this? An exciting job opportunity in D.C.? Working side by side with Ted Frank? This position provides research support on issues related to American federalism and tort reform through case and brief retrieval, citation checking, case summarization, and legal analysis. It will also involve cultivating relationships with academics and practitioners in the field and overseeing the production of several monographs per year, as well as such administrative tasks as conference planning, editing, mass mailings, and data entry. The ideal candidate will have excellent organizational, writing, and editing skills, as well as an interest in public policy and/or tort reform. Legal research experience and a background in economics preferred. Source: Overlawyered: Work in Washington, DC at AEI! Let's see... Organizational, writing, and editing skills? Check. Interest in public policy and/or tort reform? Check. Legal research experience? Check. Background in economics? Definitely not. Damn! Damn! Damn! And it would have been so much fun helping the movement to shift liability costs from corporations to consumers.
Exploiting cancer patients and Mother's Day to make a buck - that's how AstraZeneca rolls. No mention, though, if pink cupcakes will be offered in the kitchen. You recall those, don't you? Just in time for this past Mother's Day, AstraZeneca hatched a scheme to serve the goodies in chemotherapy injection areas as a way to promote its cancer meds. Source: Pharmalot: But Will They Serve Pink Cupcakes? There are a lot of things I miss about my youth. One of those things is that when I was a kid, consumers weren't assaulted on tv, on the air, and in their doctor's offices (or in the chemo lab) with advertisements for prescription drugs.
See what happens when you put some Dems in the Senate? Anti-consumer hacks don't get jobs they shouldn't have. Administration officials and Congressional leaders said that Mr. Baroody decided to withdraw after it became increasingly clear that his nomination would be rejected by the Senate Commerce, Science, and Transportation Committee. The committee was scheduled to hold a confirmation hearing on Thursday. Source: CL&P Blog: Baroody Withdraws His Name from Consideration for Consumer Product Safety Commission We'll see who gets nominated next...
Jeeze, I've been slacking for the past two days. Who is to blame? Ubisoft. I've been playing Ubisoft's Splinter Cell Double Agent and have gotten rather sucked in. I've just about beaten the game and anticipate being back to reality (and rapid-fire posting) tomorrow. I've got two articles in the pipeline, including an analysis of why preemption is just a fancy word for "screwing the taxpayers" and a rebuttal of Ted Frank's recent article in which he pooh-poohed Cyrus Dugger's critiques of the "safety is too expensive" business model. For those who care, this game doesn't work right under Vista. I actually had to install XP on a spare HD to get the damned thing to play. From what I understand, Ubisoft doesn't give a damn as they're exiting the PC market to focus on console games. Had I known that, I would have bought this game for my Xbox 360 instead of the PC. Oh well. Oh, one other thing. Don't ever try the Brazilian liquor Cachaça. It's the devil. And I don't mean that in the "It'll knock you on your ass 'cause it's so strong" way. I mean it tastes horrid. Imagine putting rubbing alcohol and roadkill in a blender, and then filtering it. That's what it tastes like. Keep in mind this is coming from a guy who loves Bacardi and Lemonhart 151 rum. I diluted a single shot in a can of Coke and still couldn't down it. Guess I'll use the bottle to clean the brake dust off my rims.
Another case where the FDA dropped the ball, and Michigan residents have no recourse. A new analysis links the widely prescribed diabetes drug Avandia to greater risk of heart attack and possibly death. More than 6 million people worldwide have taken the GlaxoSmithKline drug since it came on the market eight years ago. Pooled results of dozens of studies revealed a 45 percent greater risk of heart attack, according to the analysis, published online Monday by the New England Journal of Medicine... Several experts said it was another Vioxx-like example of the government failing to detect a safety problem until millions had taken a drug. Vioxx was a blockbuster arthritis medicine until it was withdrawn in 2004 when heart problems came to light. Source: Diabetes drug linked to heart deaths - Diabetes - MSNBC.com I wonder how many more mistakes the FDA will have to make before the idea of preemption dies the horrible death it should... Cross-posted to TortDeform
Just what we need, an all-drugs all-the-time tv station: Four big drugmakers are proposing to launch a television station in Europe to tell the public about their drugs, amid strenuous lobbying across Europe by the industry for an end to restrictions aimed at protecting patients. Pharma TV would be a dedicated interactive digital channel funded by the industry with health news and features but, at its heart, would be detailed info from drug companies about their meds. ...But consumer groups are opposed, warning that the companies will play down risk, and that their real interest lies in boosting profits. Source: Pharmalot: Big Pharma's TV Shopping Channel In Europe, pharmaceuticals aren't allowed to do direct to consumer advertising, so no one over there has to sit through gross commercials for erectile dysfunction. I find the one with the guy throwing the football through the tire to be in particularly bad taste. I also think it's funnier how the guys in the ads keep getting younger. Within ten years, I bet we'll see Viagra ads with high school jocks in the locker room talking about "performance anxiety" on prom night. Anything to keep the boomers from accepting the reality of aging, eh?
Saw a quick post at Point of Law suggesting that Marc Dann is the next Eliot Spitzer. He linked to an article at the NY Times, and this passage jumped out at me. “I never worked on Wall Street,” Mr. Dann said, “but what I do is look out my window every day and see some of the devastation that’s been reaped on the Midwest and the Rust Belt by people who are only looking out for the bottom line, sometimes to the extent of making business decisions that violate fraud laws or civil laws or even our criminal laws.” Source: In Search for a New Sheriff, One Stands Out - New York Times God forbid a state attorney general do his job and go after companies that violate the law. As much as the corporate sycophants may not like it, the attorney general's only job isn't to help collect unpaid child support. Believe it or not, they're also supposed to make sure the companies doing business in their state are doing so lawfully. (And to save Walter, Ted, or anyone else the trouble - the main reason Dann has come under fire at POL and Overlawyered is his lead paint lawsuits. Just Google "Dann +paint +lawsuit" and judge for yourself whether Dann's suit has merit.)
It is with a heavy heart and a pint of hard cider that I write this letter to you. Let me preface this letter by telling you that Office Space and Idiocracy are two of my favorite movies. I consider Idiocracy to be the most accurate "post apocalyptic future" movie ever made. I bought the Office Space kit just for the "Is this good for the company?" banner. And I date the decline of American society at the exact moment Beavis and Butthead went of the air. However, after watching tonight's King of the Hill episode, I would like to kick you in the shins. I speak of the season finale in which Lucky and "The King of Torts" file a series of frivolous lawsuits, and in which Hank Hill performs a soliloquy on the evils of lawyers and litigation in general. Besides being a wildly inaccurate depiction of the U.S. civil justice system, portions of the dialogue in this episode could have been written by a PR flak for one of the many corporate front groups that ceaselessly attack our courts to benefit their corporate masters. While I'm the first to admit there are a few scumbag personal injury attorneys who lack morals, ethics, or decency, they do not represent the average attorney anymore than the handful of priests who molest children represent the average priest. First, I would like to explain the legal problems with Lucky's lawsuit against Hank Hill. A brief recap for those who missed the episode: Luanne's fiancee Lucky is in need of work. Hank Hill suggests to Dale that he should hire Lucky for his extermination business. Dale does so, and invites Lucky into his home's basement/office. The two of them engage in some horseplay (instigated by Lucky), and Lucky falls and injures himself. Lucky retains his attorney, who proceeds to file a lawsuit against Dale. As it turns out, Dale isn't insured, so the quest for "deep pockets" begins. They first consider the manufacturer of Dale's pesticides, but he brews his own. Then they consider suing the homebuilder, but Dale built the staircase that Lucky fell on. Finally, they settle on Hank Hill for recommending Lucky to Dale. Or more to the point, they settle on Strickland Propane, Hank's employer. Under the theory of "respondent superior", Lucky claims Hank's employer is liable for Hank's recommendation and the injury that Lucky sustained. Under respondent (or respondeat) superior, an employer is liable for the acts of its employees performed in the course and scope of the employee's job. Since Hank's recommendation was not in the course and scope of Hank's employment, and since the recommendation occurred on Hank's property, Strickland Propane would be in no way liable for Hank's recommendation. And even more importantly, Hank wouldn't be liable, either anymore than Monster.com would be liable if Dale hired Lucky after reviewing his resume online. If you're looking for additional stories involving lawsuits for the show, here are two that are much more realistic: - After years of protracted use, Dale develops cancer from the chemicals he uses to make pesticide. He has difficulty finding a lawyer to take his case because he's used chemicals from three different manufacturers over the years and determining liability will be difficult. He eventually finds an attorney who sues the three different manufacturers and the chemical distributor. All four defendants deny all liability and alternate between blaming each other and blaming Dale. The defendants mount a multi-million dollar defense and fight tooth and nail not to release internal documents, citing such reasons as "trade secrets." Dale's lawyer, a sole practitioner, is overwhelmed and persuades Dale to settle for a fraction of the case's true value. Dale dies a slow, painful death, and the majority of his settlement goes to pay medical bills. Once Dale is dead, his notoriously unfaithful wife could become a stripper with a coke habit. Obviously, there's lots of hilarity there.
- The notoriously cheap Mr. Strickland decides to save money by cutting corners in the safety department. After years of neglect, one of the main propane tanks explodes, paralyzing Hank from the neck down. Because the accident happened on the job, Hank can't bring a personal injury lawsuit. And thanks to the "reform" to the Texas workers' compensation system, Hank is forced to accept permanent disability benefits that are far less than his salary. After blowing through Bobby's college fund trying to make ends meet, the Hills lose their house and are forced to move into an apartment. The rest of the show could depict the difficulties of a family of three trying to live off of Peggy's meager salary as a substitute teacher with a poor grasp of Spanish.
I doubt you'll use either of these stories because they're so miserably depressing. Unfortunately, stories far worse than these occur time and time again because so many people want to "reform" the justice system instead of reforming the systems that let these injuries occur in the first place. Mr. Judge, I can forgive you for your false depiction of the justice system as I'm sure it was unintentional. What I'm not sure if I can forgive you for is the inevitable fallout: The blogosphere will be aflame with poorly-written rants about your show proves we need tort reform. Some conservative nutjob group (CFIF is my bet) will cite the show as another example of lawyers run amok, and an already cynical public will find yet another reason to distrust lawyers.
I noticed John Engler's boys over at the National Association of Manufacturers are defending Mike Baroody and suggesting he'll be great as a consumer protection guy. The sole comment on the thread sums it up: I’m sure Mike is a great guy. As far as standing up for consumers….. this is by definition putting the fox to guard the hen house. Why would a person so devoted to fighting AGAINST consumer rights suddenly be put in charge of protection them? Much like Albert Frink I think we are going to see more “Side pockets on a cow”. But what really made me giggle were some of the blog's posts about outsourcing. Two posts call outsourcing a "big nothing sandwich" that is "a political, not an economic phenomenon." Really? That's odd because one post describes "...a secret video, smuggled out from a mouse plant in China somewhere..." Recall of course, that Mice were born in the USA and originally manufactured in the USA. Then, the blog notes that "U.S.-based chemical manufacturers... [are] moving offshore to take advantage of lower energy costs." And yet another post claims that manufacturers might move "production facilities overseas if chemical costs do not quickly come under control." Sounds like the only "big nothing sandwiches" will be what displaced workers are forced to eat.
Steve Lombardi at the Des Moines Injury Board wrote a nice explanation of why Bush's recent EO is robbing from the poor to give to the rich. So why would anyone propose an outright ban on contingent fee arrangements? There are many reasons but two of them should be obvious. One reason is to benefit corporations and the officers who might get sued for trampling on the rights of the poor and working class. Those who don't want the poor and working class to have access to the courthouse will attack and continue to malign those of us who use the contingent fee to gain access to the courthouse. Another reason is motivated by profit. Business managers whose actions have led to lawsuits will profit handsomely by avoiding accountability for their actions. Contingent fees interfere with a corporation's bottom line. Take it away and you increase the bottom line. To do so they need only take your keys away to the courthouse... And what about corporate America and the federal government's policy banning pay based upon performance? Will the President ban the granting of stock options for corporate officers and directors based on the contingent outcome of the stock price? Probably not because last I knew corporate officers and directors get a contingent fee based on winning or losing. Now there is a practice that the President should ban. Or is that silver spoon interfering with your vision? Source: Banning Contingent Fees - It's about Pure Gold and Fools Gold - Des Moines Personal Injury Lawyer Check it out.
ROFL!!! How many pharmaceutical executives does it take to screw in a light bulb? Just Seven: 1 - One to screw in the light bulb; 2 - One to file a patent for “A method for insertion of a light-emitting glass fixture into a power source by rotational motion”; 3 - One to create an ad encouraging consumers to “Ask your electrician if SuperBright XR is right for you”; 4 - One to sue the manufacturers of cheaper, longer-lasting, but equally bright, compact fluorescent light bulbs; 5 - One to launch an awareness campaign for Chronic Darkness Syndrome; 6 - One to testify before Congress against government negotiation on the price of light bulbs; 7 - One to lobby against the importation of cheaper Canadian light bulbs. Source: Pharmalot: How Many CEO's To Change A Light Bulb? My favorite is number three.
The Statesman Journal reports that Oregon citizens injured by Vioxx but unable to sue because the statute of limitations expired may get justice after all: Some Oregon lawsuits against the manufacturer of Vioxx could proceed under a bill that the Oregon House passed Tuesday. House Bill 2448, which went to the Senate on a 58-0 vote, would fix a glitch in Oregon law that blocks some people from suing Merck. Vioxx was introduced in 1999 as a medication to relieve pain from arthritis, but was withdrawn in 2004 because of an elevated risk of heart attack and stroke. The Supreme Court ruled in 2001 that liability suits had to be filed within two years of an injury, regardless of when the plaintiff discovered the connection between the injury and the product in question. The 2003 Legislature changed the law to allow a lawsuit two years after such a discovery, but the law applies to injuries occurring after Jan. 1, 2004. The bill would allow suits by those injured after the court's 2001 decision but before the Legislature's 2004 fix. -- Peter Wong Source: 2007 Legislature - StatesmanJournal.com Relevant portions of the bill are below: (2) A civil action for injury, including any product liability action under ORS 30.900 to 30.920 and any action based on negligence, resulting from the use of a COX-2 inhibitor must be commenced not later than four years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the injury and the causal re- lationship between the injury and the product, or the causal relationship between the injury and the conduct of the defendant. (3) A civil action for death, including any product liability action under ORS 30.900 to 30.920 and any action based on negligence, resulting from the use of a COX-2 inhibitor must be commenced not later than six years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the causal relationship between the death and the product, or the causal relationship between the death and the conduct of the defendant. Source: House Bill 2448 Here's hoping that the bill becomes law.
This is definitely the tort "reform" equivalent of a "man bites dog" story. Since 1995, OHSU has enjoyed the sunny sanctuary of the Oregon Tort Claims Act, which limits jury awards against the hospital and other public agencies to $200,000 in damages. That liability limit -- unavailable to every other hospital in the state -- is being reviewed by the Oregon Supreme Court in the Jordaan Michael Clarke case. At the age of three months, Clarke suffered prolonged oxygen deprivation in an OHSU intensive care unit after heart surgery. His family sued OHSU, which admitted negligence, for more than $17 million. Last July, the Oregon Court of Appeals ruled the family's suit could proceed, effectively killing the cap. While the hospital appealed that decision to the Supremes, OHSU President Joseph Robertson has joined the chorus of those who believe the tort limit needs to be amended. "I want to be unequivocal: I think the cap should be raised," Robertson said Wednesday. "We want it to meet the 'Is this reasonable?' test." Source: And the Legislature is 0-for-3 - OregonLive.com I applaud Joseph Robertson for acknowledging that $200,000 is not reasonable. Do you think our good friends at the ILR and the ATR will join Robertson in his quest to raise the cap? Cross-posted to TortDeform
Ted Frank at Point of Law once again comes to the defense of Enron. In addition to attacking trial lawyers, he also attacks the Enron employees "foolish" enough to trust that their company wasn't being run into the ground. The Washington Post's Harold Meyerson ("Enron's Enablers", May 9) correctly identifies the litigation against Enron's investment banks as a place where money was stolen from shareholders, but blames the wrong party. The real scandal is that trial lawyers were able to extort $7.3 billion dollars from shareholders of companies that violated no law by threatening dozens of innocent bystanders (many of whom also lost money in the Enron collapse) with bankrupting liability. If William Lerach and his crew thought they had a legitimate chance of winning their suits, they breached their fiduciary duty to their clients by settling for pennies on the dollar and leaving tens of billions of dollars on the table... [The corollary is that if the companies who settled felt they had a legitimate chance of winning their suits they breached their fiduciary duty to their shareholders by settling. - Justinian] Finally, Meyerson's article fails to note that no Enron employee was required to hold his entire 401(k) investment portfolio in Enron stock. Charles Prestwood has only himself to blame for the fact that his entire 401(k) was wiped out; if he had followed basic investment principles of diversification, his pension fund would still have several hundred thousand dollars even after Enron's collapse. [When I worked for Microsoft, my 401(k) was entirely invested in Microsoft stock, as were the 401(k)'s of many of the company's millionaires. We believed in our company and were lucky enough not to have crooked executives run our portfolios into the ground. Frank's attempt to shift blame to Enron's employees is shameful. - Justinian] Source: PointofLaw.com | PointOfLaw Forum: Harold Meyerson on Enron Regular corpreform readers will remember that Ted works for AEI, a company which used to count Ken Lay as one of its board members and Enron as one of its funders. Granted, Lay and Enron were no longer associated with AEI by the time Frank joined the company, but one would assume otherwise by the way Frank routinely jumps to their defense.
David Nieporent at Overlawyered had an update on Roy Pearson's bogus pants lawsuit. As with many of his posts, it's rife with demagoguery and factual omissions. Contrary to what we had speculated, it appears that Pants Judge Roy Pearson still has a job and may continue to do so. According to an unnamed D.C. official, and exemplifying the attitude with which the tort reform movement is fighting, "I don't think it's appropriate not to reappoint someone just because they file a lawsuit. You can't retaliate against someone for exercising their constitutional, First Amendment right to file a lawsuit to vindicate their rights." (No, but you can retaliate against someone for filing a frivolous lawsuit.) Meanwhile, as a face-saving publicity stunt, the American Trial Lawyers Association filed an ethics complaint against Pearson; really, Pearson isn't doing anything that ATLA doesn't endorse in other situations. Source: Overlawyered: Updates - May 17 First, I agree wholeheartedly that this lawsuit is frivolous. So does David. But neither he nor I can discipline Roy Pearson. Until a judge does make the judicial determination that this lawsuit is frivolous, vexatious, or otherwise inappropriate, Pearson is nothing more than a litigant in a civil lawsuit and there is no legitimate reason to terminate him for this lawsuit. Terminating him now sets a dangerous precedent; should your bosses be able to terminate you for firing any lawsuit they determine to be frivolous? No. Pearson should keep his job unless and until the judge in his case makes the determination that the case is frivolous, vexatious, malicious, or otherwise improper. Once that determination is made, however, Pearson should be out on his ass. Second, Nieporent's attack on the ATLA is without factual basis, and is nothing more than another of Nieporent's knee-jerk reactions against trial lawyers. This wasn't a face-saving stunt in any way, if for no other reason than the ATLA was not affiliated with or otherwise associated with Pearson or this lawsuit. One of the reasons this case shocks us is because Pearson is a judge. If any group of people need to "save face" then, it's not trial lawyers, but judges. Moreover, ATLA members are giving money to the Chungs. I wonder if Nieporent has written them a check yet.
I'm a bit under the weather today and haven't had the energy to post. Now, after learning that our Corporation-in-Chief signed an Executive Order prohibiting contingent fee attorneys from helping the government, I'm feeling pissy. I'll probably elaborate more tomorrow, but here are some of the reasons this is a bad idea. - The top contingent-fee lawyers in the country are the cream of the crop of attorneys. They're certainly better qualified to take on massive cases than their counterparts in the government.
- Now, instead of getting valuable services for free, the taxpayers will be forced to pay for services which used to be free.
- Because outside counsel are likely to be expensive, they will be used rarely. The net effect will be less government enforcement.
- Contingency fees have once again been demonized as if there's something wrong with them. You know, I wish the top 100 law firms had to switch over to a contingency fee scheme in which they only get their hourly rates when they achieve results. Maybe then plaintiff's attorneys would get a little more respect.
- The ILR applauded the executive order. Anything they approve of is bad for consumers.
(sigh) It's times like this I wish I was still in Texas with my trial lawyer friends. We'd get drunk, cuss about W and Republicans in general, and generally behave irresponsibly. Oh well. Guess I'll watch a zombie movie instead.
Tip of the hat to Pharmalot for pointing this out to me. "Reformers" often complain that the tort system discourages innovation and new product development, and therefore is preventing sick people from getting the drugs/products/surgeries they need. The pro-business, anti-consumer "reform" lobby decline to mention suits like this: May 15 (Bloomberg) -- Johnson & Johnson's Cordis Corp. and drugmaker Abbott Laboratories sued each other over a new patent for methods of coating heart stents with protective drugs. Cordis contends in a complaint filed in federal court in Trenton, New Jersey, today that Abbott is infringing the patent with its new Xience V stent, planned for sale in U.S. markets. Abbott claims in a suit filed today in Wilmington, Delaware, that the Cordis patent is invalid. ``The coronary stent industry is highly litigious'' and Johnson & Johnson ``has a well-known history of suing competitors,'' Abbott Park, Illinois-based Abbott said in its complaint. (Emphasis added.) Source: Bloomberg.com: Health Care Wouldn't you assume that the threat of being sued into oblivion by large competitors would be a much bigger deterrent to developing new products than the threat of being sued if your product kills or injures a customer? Why aren't groups like the U.S. Chamber of Commerce working to clamp down on the frivolous litigation in the coronary stent industry? Hmmm... I wonder... Could it be because the Chamber receives millions of dollars of funding every year from some of the companies who file these lawsuits against their competitors?
"Liberaldem" has written a nice opinion piece in the vein of what I've been meaning to write for a few months now. The entire piece is worth reading, but I especially agree with his conclusion: How, then, can the problem be fixed? It has to be cultural. It can't be a forced change. There's no law that can make people allow for each other's imperfections. Neither is "tort reform" the answer. Taking away legal recourse will only protect those who are truly at fault in a given situation. Each of us, one by one, must look in the mirror and see another person. That other person must have faults like ours. Bad days, occasionally poor judgement, misstatements and all the other warts that we so earnestly wish for others to accept in ourselves. Then, and only then, can safety and sanity determine the options we choose rather than avoidance and secrecy. Then and only then will we empower our leaders in business, government and education to speak up when something goes wrong. Only then will those about whom we care the most, our children, be safe. I'm game, are you? Source: Going Down the Road: "Circle the Wagons" Culture If we're a litigious society, it's because we have a winner-take-all mentality that sees most of life's endeavors as a zero-sum game. We don't value compromise, we admire self-described SOB's for their selfishness and greed, and we see those who seek compromise as weak. The natural result of such a culture is that when something goes wrong, we want vengeance and we want money.
Saw this post at Concurring Opinions, and simply had to point it out. In one case in the report, a man was switched to a Humana plan from traditional Medicare. As a result, he lost the extra benefits that he had under a Medicare supplement policy from Blue Cross and Blue Shield of Oklahoma, and he incurred additional costs when he became ill. The Oklahoma Insurance Department said: “The member had to borrow against his house to pay for these uninsured hospital and medical expenses. This was solely due to the failure of the agent to properly explain his existing coverage and the impact of purchasing a Medicare Advantage plan.” How do we think about a story like this? Did the Humana subscriber just make a bad bet, and now has to face the consequences? Perhaps. But is this development really a triumph for cost containment? Doesn't it just speed the man onto Medicaid? I worry that the new emphasis on multiple tiers and types of Medicare services is ultimately just a way of shifting costs to the consumers least able to understand fine print or advocate for their rights. (Emphasis added.) Source: Concurring Opinions: Medicare Part Z: Every Man a Lawyer Seems like the whole point of the business lobby is to shift costs onto consumers. I've yet to see one credible rebuttal to my point that tort "reform" shifts many costs onto taxpayers.
I was surprised to read the following statistics in an article in the Naples Daily News: A state-by-state examination of medical malpractice claims paid in 2006 shows that Florida’s average payout was lower than the national average, resurrecting the debate about the merits and pitfalls of tort reform that is expected to change the malpractice climate in the state... Florida’s average claim payout, whether by settlement or jury verdict, was $241,800 last year while the national average was $308,600, according to the Kaiser Family Foundation... [So why does Florida need damage caps? - Justinian] Insurance companies paid a total of $198.7 million arising from 822 paid claims in Florida last year, according to Kaiser. That’s 14.7 claims paid for every 1,000 physicians in the state... The numbers for Florida come as no surprise to Orlando trial attorney Scott McMillen, who points to a $500,000 cap on noneconomic damages approved by the state Legislature in 2003 after pressure by then-Gov. Jeb Bush. "The Legislature in Florida has been steadily chipping away the rights of Florida consumers," he said. "It is resulting in smaller settlements and more cases going to trial because the defendants have no fear. The insurance companies know the worst it will be is $500,000 — so why settle."... Source: Fla. below national average in amount of paid medical malpractice claims I don't see how 14 claims per 1,000 physicians, with an average payout of $241,800 can constitute a malpractice crisis. Especially since Florida fares better in the study than many other states. Seems to me that Florida malpractice insurers are gouging doctors and blaming lawyers. Of course, that's old news.
It appears that the Georgia State Bar isn't going to lie down and take the abuse anymore. The State Bar of Georgia is running excellent television ads, and I saw one tonight. This is a public relations campaign that rivals what physicians did in the run up to passing "tort reform."... The profession isn't perfect. Neither is mine. Neither is yours, but lawyers and the courts have been the target of a two or three decade-long attack by radical right wingers who wish to take over (politicize) the courts and vest power in the executive and legislative branches of government. In Georgia, other than the campaigns of Sears and Hunstein, this is the first coordinated effort I have seen to punch back. Good for the State Bar. Good job. Source: GEORGIA WOMEN VOTE!: Smart, Smart, Smart Has anyone seen the ads, or better yet, Youtube'd them? I'd love a description of them or a copy of them.
The "reform" movement is always pushing for a Federal tort "reform" package that will preempt state tort laws. Such a preemption would mean that the "reform" lobby could impose their will upon the citizens of every state. Preemption generally works against citizens in favor of corporations. But here's an instance where preemption actually worked for citizens: In the malpractice case, Justice George H. Carley wrote for a 6-1 majority of the justices that the underlying law, O.C.G.A. § 9-11-9.2, is preempted by the federal privacy provisions of the Health Insurance Portability and Accountability Act of 1996, or HIPAA. “State law may provide for more stringent requirements on the disclosure of protected health information than HIPAA does, but cannot authorize disclosure based upon less stringent requirements than those mandated by the federal law,” Carley wrote... Joe Watkins, president of the Georgia Trial Lawyers Association, which filed an amicus brief on behalf of Thomas’s client, wrote in an e-mail, “We applaud the Supreme Court for strictly interpreting the Georgia law and not trying to legislate from the bench a better law than the one the Legislature rushed into law two years ago.” Donald J. Palmisano, general counsel of the Medical Association of Georgia, which filed an amicus brief supporting the medical providers in the case, said that the high court’s opinion goes against the state’s long-recognized provision that when a plaintiff puts his medical treatment at issue in a case, he’s also putting his medical history on trial. Source: Supreme Court blocks part of ‘tort reform’ law - Daily Report Presumably, there will be a flurry of press releases decrying this decision and warning that Georgia's supply of physicians is being threatened and that the sky has begun to fall in Georgia. Cross-posted to TortDeform
The author of the Pacific Research Institute's bogus study on the tort system responds to criticism in the following letter to the editor: Our calculations are based on the best scholarly studies by the nation's top economists and legal scholars -- in fact, 34 studies written by 52 scholars. If one compares direct U.S. tort costs to the tort costs of other industrialized nations, for example, one realizes that the U.S. tort system is the most expensive in the industrialized world. At 2.2 percent of GDP, direct costs are bigger than our counterparts in Germany, France, Japan, and the United Kingdom. Source: montgomeryadvertiser.com :: Director of study defends work OK, so we spend 2.2 percent of our GDP on the tort system. (Maybe.) So what? How much should we spend? 2 percent? 1.5 percent? .05 percent? By stating the number and implying that it is too high, the "reformers" can always claim there's something wrong with the tort system. What they won't do, and indeed what they can't do is state what percentage of the GDP the tort system should be, and then state what "reform" measures will lower the tort costs to that percentage.
In my former life, I was a computer expert who in addition to working for companies like Microsoft and UBS Swiss Bank, was also a court-appointed computer expert. The following post from Point of Law reminded me of my former career: Throwing out an obsolete PC It can prove a costly mistake if it contains information arguably relevant to a legal dispute you're in... Source: PointofLaw.com | PointOfLaw Forum: Throwing out an obsolete PC If you want to get rid of an old PC, but don't want to lose the data, simply remove the hard drive and keep it on a shelf. All the data you're obligated to preserve will be on that drive, and the drive will be the size of a paperback book, if not smaller. If you want to destroy the data, yank the drive and drill a hole through it with a big drill bit. Perhaps the CIA could recover data from the drive, but your average civil litigants will lack the means. And if you want to surreptitiously destroy the data, put the biggest magnet you can find on the drive and leave it there for as long as you can. Back in the day, you used to be able to buy VHS tape erasers from Radio Shack. Due to the waning popularity of VHS, I don't think you can find them anymore, but they will do the trick if you can find one. Oh - no matter if you're the plaintiff or the defendant, make sure to comply with all applicable discovery orders. Spoliation isn't nice.
It's no secret that the pharmaceutical industry is a big proponent of tort "reform." That industry is lobbying heavily for laws that will basically eliminate the ability for individuals to sue over defective prescription drugs - like the law we have in Michigan.
Part of their argument for such immunity is the notion that the companies would never knowingly release a defective drug and that pharmaceutical companies are good, ethical companies.
Here is just a sampling of posts regarding fines, convictions, and guilty pleas of pharmaceutical companies and executives. All of these are pulled from one of my new favorite sites, Pharmalot. As you'll notice, there are quite a few examples. And all of them have been reported since May 1st.
Before we pass laws to benefit this industry, why don't we regulate the industry in an effective manner that forces them to comply with the laws they routinely break? It seems foolish to grant lawbreakers protection from the law.
Continue reading "The Pharmaceutical Industry and Tort Reform" »
Russ Bensing at The Briefcase writes about an email he received from the Institute for Legal "Reform" that mentions the "tort crisis" in his home state of Ohio. "Now, I’m certainly not averse to pointing out the excesses of the tort system, as I did back here. On the other hand, the “common sense reforms” the Institute lauds appear to be rather one-sided. The “substantive progress made by the Ohio Legislature to fix the state’s lawsuit system over the last several years,” as the Institute phrases it, includes a new definition of employer intentional tort which actually requires that the employer have specifically intended to injure the employee. As the Supreme Court noted the last two times it struck down an identically-worded statute, this could create a scenario in which an employer would be guilty of a crime but exempt from civil liability. Interestingly, the Institute’s email coincided with the posting on the Supreme Court website of the Ohio Court Summary for 2006, a breakdown of cases being handled in Ohio’s courts. One of the reports included in the summary is a tabulation of case filings, by type — professional tort, product liability, and so forth. Out of curiosity, I compared the new case filings in various categories in the 2006 summary with the same info in the 1999 summary, the oldest one available on the court’s site. That comparison doesn’t give a whole lot of support to the idea that Ohio is suffering from a litigation explosion, at least insofar as torts go. New filings in professional torts are down 44% from 1999; product liability filings have decreased by 37%, and “other torts” have declined by 18%. By comparison, new criminal cases, as you might expect, are a growth stock, climbing by 38% in the past seven years." (Emphasis added.) Source: The Briefcase » Tort reform Allowing corporations to commit crimes and not face civil liability... yeah, that sounds like an ILR idea. And nevermind that tort filings are dropping like flies in Ohio; as long as there's a single tort claim filed, the ILR will claim a state is suffering from a crisis.
Of all the contributors to Overlawyered, David is by far the most biased in favor of insurance companies. Apparently, he's never seen a claim that an insurer should pay. Here's another great example of his knee-jerk bias in favor of insurers. The italicized paragraph is part of Eric Turkewitz's post discussing a doctor who is liveblogging his own malpractice trial. Eric notes that the doctor doesn't want his malpractice insurer to use the blog as an excuse not to pay the verdict if the plaintiff wins. But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff's verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff's verdict. Well, sure -- it is about the money, after all. Source: Overlawyered: Liveblogging a malpractice trial David, of course it is about the money. The physician in question has paid premiums to his insurer with the understanding that if he is found liable for malpractice, the insurer will pay the claim. If the insurer reneges on that promise, the doctor is not only forced to cover the verdict, but has wasted thousands of dollars in insurance premiums. Let's not chastise the doctor for expecting his insurer to fulfill its contractual obligations.
The latest propaganda from the ATRA is Agwatch.org, a website dedicated to ensuring state attorneys general aren't able to enforce the law. I saw this quote and immediately thought of the reform movement. “AGs often use isolated instances of misconduct as a lever to discredit – and then to “reform” – perfectly legal, legitimate, and often efficient business practices.”
- Michael S. Greve, American Enterprise Institute Source: AGAgendaWatch - What Others Are Saying Reworded, the sentence is as follows: "Reformers often use isolated instances of misconduct as a lever to discredit - and then to "reform" - perfectly legal, legitimate, and often efficient court systems." I note with much humor that they're putting quotes around the word "reform." I also note with disbelief they imply attorneys general are wrong to try and enforce the law against large industries.
I am humbled. I have tried to use sarcasm, satire, and parody to explain exactly why tort "reform" is bad for the public and will lead to a lives being traded for money. I thought I was pretty good at it. Apparently, I'm an amateur. My new heroes at The Yes Men impersonated a Dow Chemical VP and gave a fake speech at a banking conference in London. This excerpt explains why tort "reformers" are so adamant that we must bring "predictability" to the civil justice system. "You may have heard the joke: How many Americans does it take to screw in a lightbulb? 12: one to climb the ladder and 11 to file the lawsuit. What about Indians? Oh, just one! This joke could well be about those cases in which regional differences in law, culture, income, and so on produce radically different risk outcomes. I'd like to illustrate this with a hypothetical use of the AR Calculator™. Suppose Bill wants to set up a factory to produce a new pesticide. He logs on to the AR Calculator™ and plugs in the various chemicals, how much he wants to produce, and so on. The database finds roughly analogous cases, adjusts for geography and changes in law and income, and tells Bill that the risk of setting up in the US might well involve over $2 billion in liability from potential area lawsuits. After comparing that with profit projections, it's very clear that taking this route will make Bill an unhappy camper. But the database proposes alternatives. The harm risk in India, for example, translates into potential losses of less than $400 million, based on previous liability settlements. Meanwhile, profit margins actually increase thanks to cheaper manufacturing, less draconian inspection requirements, etc. It is clear already that the skeletons here will be golden." Source: Acceptable Risk You simply must visit this link, if only to watch the video where the golden skeleton is unveiled, and various bankers pose for pictures with it.
Beth Stover, a woman whose baby died while under the care of Kaiser Permanente in California, sent me a wonderful letter and linked to her story at Kaiser Permanente Thrive Exposed. That site appears to have a wealth of information about Kaiser Permanente and is worth reading. If you only have time to read one post at that site, look at Beth Stover's story and all the roadblocks she's run into trying to get justice. The following excerpt about damage caps is an excellent argument against them. ROADBLOCK Number 3: California’s MICRA and Kaiser’s own version of MICRA (Medical Injury Compensation Reform Act) This is a BIG ROADBLOCK and one that works very well for Kaiser and any other healthcare provider that has adopted the practice of providing negligent care, or should I say “withholding care”. MICRA is a law enacted back in 1975. Yes, 1975! This puts a $250,000 cap on non-economic damages in medical malpractice cases in California. My Baby’s life is not worth enough money in California for a lawyer to be interested. It’s not a good business decision financially for lawyers to take on malpractice cases UNLESS the Baby/patient will need a lifetime of care. This brings us back to the missing fetal heart monitor in my case. Kind of makes us wonder if my Baby was left to die after discovering possible brain damage had already taken place. It is MUCH cheaper to let the Baby die instead of getting stuck with the economic damages that might have applied if Lehna had lived. This should have been my decision, NOT a financial decision made by Kaiser. I would have chosen to let Lehna live. Not only do you have MICRA to go up against in California, but Kaiser saw how well MICRA prevented lawyers from going after them for medical malpractice that they decided to enforce a double whammy and put a $250,000 cap on any future Kaiser Members everywhere, who experienced medical malpractice within Kaiser. MICRA and Kaiser’s $250,000 cap is a LICENSE TO NOT PRACTICE MEDICINE since it prevents Kaiser from being pursued in the all too common event that medical malpractice has taken place. There seems to be no recourse for many Kaiser members and Californians due to the fact that finding a lawyer who will take these cases is next to impossible. ALL Kaiser members, not just in California, need to read the fine print in their agreement with Kaiser. “In the cold calculations of medical malpractice, a brain-damaged baby is worth more than a dead baby. The brain-damaged baby will need a lifetime of specialized care.” “Arbitrary caps on “non-economic” compensation unfairly discriminate against the suffering of women — who typically sustain injuries due to medical negligence, such as laceration of the uterus or loss of a new born during child birth, that do not carry high “economic” price tags but involve significant loss. Injuries sustained by homemakers are also unvalued, because they have no “wage loss.” Caps not only deny women victimized by medical malpractice fair compensation and legal representation for their injuries, but subject women to repeat offenders and have been undeterred.” Source: Kaiser Permanente Thrive Exposed » Happy Birthday Lehna Jordann Brewer Immediately after the italicized quote above is a link to testimony that Jamie Court of the Foundation for Taxpayer and Consumer Rights gave before the U.S. Congress in 2002. It too is a good read, as is just about anything from Jamie Court and the FTCR. Cross-posted to TortDeform
Hot off the wire, it looks like Senator Greenleaf has introduced a real tort reform bill in Pennsylvania. PHILADELPHIA, May 8 /PRNewswire-USNewswire/ -- The Pennsylvania Trial Lawyers Association (PaTLA) today welcomed legislation recently introduced in the state legislature: a Senate bill that levels the playing field for victims of bad faith on the part of insurance companies and a House bill designed to help consumers make more informed choices when purchasing automobile insurance. Senate Bill 745 introduced by Sen. Stewart Greenleaf would allow juries to determine fault and award damages in bad faith insurance cases. Currently in Pennsylvania, only a judge can decide bad faith, while in federal court juries make the decision in such cases. "If a jury is competent enough to decide cases involving negligence or criminal conduct-and it is--we should have confidence in them to make a determination of whether an insurance company was wrong in denying or stonewalling a claim," said Ruben Honik, President of PaTLA. "The founding fathers knew the jury system would work 200 years ago and it works today." Source: State Trial Lawyers Applaud Bills Protecting Rights of Pennsylvania Consumers - - insurancenewsnet.com Count on the insurers fighting tooth and nail against being forced to endure a fair trial. And also count on the "reform" movement claiming this bill is bad public policy and either a handout or a payback to the trial bar. Cross-posted to TortDeform
Attorney Richard Scruggs uncovered somewhere between 5,000 and 15,000 pages of confidential State Farm documents that may prove the company falsified engineering reports and engaged in other illegal activities to avoid paying legitimate Katrina claims. Through legal wrangling, Scruggs was ordered to return these documents and he won't be allowed to use them to benefit his clients. Scruggs contacted the Attorney General and provided the A.G.'s office with the documents, and for doing so he may be held in criminal contempt. Ted Frank (Not Walter Olson, as I mistakenly posted) at Point of Law (who has previously bashed Scruggs) seems to think the real story is that Scruggs may have violated a protective order: David Rossmiller continues to have good coverage of E.A. Renfroe & Co.'s seeking criminal contempt charges against Scruggs for his violation of a protective order. Earlier: Mar. 19 (and Rossmiller Mar. 6). Source: PointofLaw.com | PointOfLaw Forum: Dickie Scruggs contempt hearing over Rigsby sisters' documents Predictably, both Point of Law and Overlawyered are more concerned with the possible misconduct of one attorney (who Walter claims is a "zillionaire") than whether State Farm falsified documents to avoid paying legitimate claims. I'd give much more credibility to those guys if they went after crooked corporations with even half of the zeal of their persecution of successful trial lawyers.
My new favorite site Pharmalot has coverage of another off-label marketing scandal: Medicis agreed to settle allegations the company violated the False Claims Act concerning claims submitted to Medicaid, the Justice Department announced today. The settlement resolves charges Medicis promoted a topical skin preparation, Loprox, for use on children under the age of 10, without FDA approval. The US and four former Medicis employees alleged that from approximately November 2001 through April 2004, Medicis sales personnel targeted pediatricians, urging the docs to use Loprox as a treatment for diaper rash. Loprox, which is approved as a fungicide for kids over 10, isn't a “medically accepted indication” for the treatment of diaper dermatitis and other skin disorders in children under 10. Source: Pharmalot: Medicis: $9.8M For Off-Label Marketing; Four Fomer Sales Reps To Share $1M This is especially bad for two reasons. First, off-label marketing is dangerous because the drugs have not been tested or approved by the FDA for this purpose. Thus, Medicis put infants at risk just to make a buck. Second, many of these prescriptions were paid for by Medicaid under false pretenses; because Medicaid won't approve prescriptions for off-label usage, the taxpayers got ripped off. Medicis is settling for $9.8 million dollars. A little over 1 million is going to the former employees who helped bring Medicis to justice. Without the qui tam provisions of the False Claim Act, the odds are Medicis never would have been caught. Since qui tam provisions are so effective in catching crooked corporations, I bet you won't be surprised to know that the gang at Overlawyered and much of the rest of the "reform" movement want to limit or abolish qui tam.
I've previously covered Professor Peters' study that disproves the existence of a medical malpractice crisis. Now the Washington Post has written about it. There is no empirical evidence to support the much-publicized notion that the tort system amounts to a lottery for injured plaintiffs, as President Bush and others have long maintained, writes Philip G. Peters Jr. in the May edition of the Michigan Law Review. If anything, the system appears to be biased against them... "The studies reveal that juries treat physicians very favorably, perhaps unfairly so," Peters writes, "and are more likely to defer to the judgment of a physician defendant than other physicians are."... "Critics assume that the 'battle of experts' frees juries to award unjustified recoveries," he writes. "The data suggest that it is more likely to shelter negligent physicians." Source: That Malpractice 'Epidemic'? - washingtonpost.com One would think that doctors will read this study and come to the logical conclusion that their malpractice insurers are taking advantage of them. Unfortunately, it's more likely that doctors will label this study as propaganda and continue fighting on behalf of the insurers that gouge them. Cross-posted to TortDeform
These are the two biggest reasons I'm not an Obama fan. "...Or that he opposed an amendment to the Bankruptcy Act that would have capped credit card interest rates at 30 percent... Never mind that Obama voted for a business-friendly "tort reform" bill that rolls back working peoples' ability to obtain reasonable redress and compensation from misbehaving corporations. . ." Source: UNDERNEWS: A FEW THINGS TO FORGET ABOUT WHEN SUPPORTING OBAMA John Edwards in 2008, baby!
Walter Olson posted about a tasteless billboard in Chicago that glamorizes divorce: "Life's short. Get a divorce," proclaims the Chicago billboard of the law firm of Fetman, Garland & Associates. Flanking the message: big pictures of a buxom temptress in black lace bra and, on the other side, a half-clad muscleman. Reaction has been strong: "It's grotesque,'' said John Ducanto, past president of the American Academy of Matrimonial Lawyers. "It's totally undignified and offensive." Source: Overlawyered: Tasteless lawyer-ad Hall of Fame Are we supposed to be shocked and offended? I'm not. Let's face it - the idea of marriage being sacred is antiquated and obsolete. We've got celebrities getting married and divorced in a matter of days or weeks, and there's no condemnation there. It's become a spectator sport. Divorce is so "normal" these days that we've got credible presidential candidates with divorces under their belts. I'm not casting judgment on whether our society is right or wrong for permitting divorce on demand. But I am saying that we need to quit pretending that marriage is sacred in our society any more. It isn't, and divorce is solidly "no big deal." We even have the concept of "starter marriages" now. Starter marriages? And people get offended at a billboard suggesting that a good reason to get divorced is the chance to sleep with hot people? Actually, isn't that slightly less offensive than the many "married but looking" dating sites these days? The billboard at least pays lip service to the idea that you should get a divorce before you start sleeping around. It's not like we're going to make it harder to get divorced. Again, people are too selfish and there's too much money in the divorce industry. So if some lawyer wants to profit from lust and selfishness, don't blame him. Blame the lusty and selfish and people who are willing to get divorced at the drop of a hot chick's top.
Introduction When you think of Ford, GM, or Chrysler, what state comes to mind? Michigan, of course. No other state is as synonymous with the auto industry as Michigan. You might be surprised to learn that despite their close ties to Michigan, none of the “Big Three” are actually Michigan corporations. Instead, Ford, GM, and Chrysler are incorporated in the state of Delaware. Because Delaware was the first of the original Thirteen Colonies to ratify the Constitution, Delaware calls itself “The First State.” And Delaware is the first state corporations choose for incorporation. Over half of all U.S. publicly traded corporations, and over half of the companies in the Fortune 500 are incorporated in the state of Delaware. Because so many corporations are incorporated there, Delaware is often referred to as a “corporate haven.” Delaware got its start as a corporate haven at the close of the nineteenth century when Delaware passed a general corporation act that greatly eased the process of incorporating. Prior to this act, obtaining a corporate charter required approval by the state legislature, and even if granted, the corporate charter would expire at the end of twenty years. The general corporation law passed in Delaware in 1899 allowed corporations to exist perpetually, removed the requirement of legislative approval, and helped transform the corporation from a public improvement organization to a for-profit organization. For over one hundred years, Delaware has proven to be a safe, fair, and profitable home for some of America’s most important business enterprises. To do so, Delaware legislators have consistently worked to ensure that Delaware’s court system has been fair to – but not biased in favor of – Delaware corporations. The Institute for Legal Reform The U.S. Chamber Institute for Legal Reform (ILR) was founded in 1998 “to address the country’s litigation explosion” and works to “neutralize plaintiff trial lawyers’ excessive influence over the legal and political systems” as well as to “enact common sense reforms to ensure fairness in liability lawsuits.” The ILR spends in excess of $20 million per year lobbying for various “reforms” to the civil justice system and was instrumental in passing the Class Action Fairness Act of 2005. It is disputed whether the ILR aims to make the civil justice system more fair, or to make it unfair to plaintiffs is hotly disputed. What cannot be disputed is that the ILR works to pass legislation that limits the liability of corporations and other businesses. A key weapon the ILR uses in its efforts is a yearly study which ranks “how reasonable and balanced” each state’s liability system is. The ILR issued the first “U.S. Chamber of Commerce State Liability Systems Ranking Study” in 2001, and released the 2007 study in April of this year. Delaware’s Justice System is Ranked Best in the Nation Some may argue that Delaware’s legal system needs to be altered, but such an argument ignores the work of the ILR. From 2001 to 2007, the ILR has consistently ranked Delaware as having the best legal climate in the nation. The ILR ranks states broadly, as well as in individual categories. Since Delaware was ranked number one overall, it stands to reason it did well in individual categories as well. It did. In both 2006 and 2007 Delaware ranked first in the nation for: - Overall treatment of tort and contract litigation – According to the ILR, no state in the land has a fairer tort system. This is hardly evidence that Delaware needs legal “reform.” Those who suggest otherwise should recall the aphorism “If it ain’t broke, don’t fix it.”
- Treatment of class action suits and mass consolidation suits – While class action lawsuits may be a problem elsewhere in the nation, the ILR found that in Delaware they are not. Remember, the ILR led the successful charge for nationwide class action reform.
- Punitive damages – Corporations fear few legal remedies more than the award of punitive damages; according to the ILR they need not fear them in Delaware.
- Timeliness of Summary Judgment or Dismissal – Clearly, Delaware’s courts are the best in the nation in spotting and eliminating frivolous lawsuits. This is no doubt the result of fair and balanced rules of civil procedure.
- Discovery – Abusive discovery practices can cost a corporation dearly. Thankfully, Delaware’s courts ensure the discovery process is fair to all parties. Once again, Delaware’s rules of civil procedure are working to the benefit of all litigants.
- Scientific and Technical evidence –So-called “junk science” is purported to support bogus lawsuits across the country. Delaware’s judges understand how to properly apply the Daubert standard and ensure junk science doesn’t corrupt Delaware’s court system.
- Noneconomic damages – Delaware’s judges and juries understand better than those in any other state how to fairly award noneconomic damages. The temperance of Delaware citizens is to be commended.
- Judges’ Impartiality – Despite Delaware’s reputation as a “corporate haven,” its judges are not beholden to corporations, but to the fair administration of justice.
- Judges’ Competence – Every citizen in Delaware should take pride in the fact their state has the most competent judges in the nation.
While Delaware’s rankings in individual categories have fluctuated from year to year, Delaware has always been ranked by the ILR as having the best justice system in the country. For six years straight, Delaware has been ranked as having the best civil justice system in the country by the U.S. Chamber of Commerce. This is strong evidence that any “reforms” to Delaware’s civil justice system are unnecessary. Moreover, such “reforms” may have unintended consequences that compromise Delaware’s fair justice system. First vs. Worst As impressive as it is for Delaware to have consistently been ranked as having the best justice system in the nation, it’s even more impressive in light of the amount of tort “reform” enacted in Delaware. Delaware has passed only three “reforms” to the civil justice system, all dealing with medical malpractice. Contrast Delaware’s three “reforms” with the 53 of Texas and the 19 of West Virginia. Each state consistently ranks in the bottom five of ILR’s study. The “reforms” passed by those two states are included in the appendix. They run the gamut from damage caps to contingency fee reforms to modifying rules of civil procedure. Year after year, these states pass laws advocated by the ILR, yet year after year these states are said to have the worst civil justice systems in the nation. The Institute for Legal Reform isn’t the only group to rank Texas and West Virginia as having terrible civil justice systems. The American Association for Justice (AAJ) also ranks Texas and West Virginia as having the worst civil justice system in the country. However, the AAJ is comprised mainly of the plaintiff trial lawyers the ILR opposes. These groups have completely opposite ranking methodologies, yet both groups agree that Texas and West Virginia’s civil justice systems are horrible. Texas and West Virginia’s experiences with tort “reform” unequivocally demonstrate that “reforming” a state’s liability system by restricting the rights of the injured is not an effective way to bring fairness to the courts. If it were, Delaware would be near the bottom the ILR’s rankings, and Texas would be near the top. The Real Reason to “Reform” Delaware’s Court System Since Delaware has such a fair justice system, what possible reason could there be to modify it? Precisely because Delaware’s justice system is so fair. In March of this year, a New Castle County jury unanimously found in favor of a brake technician who sued General Motors and Ford after he developed asbestosis from years of exposure to brake and clutch components with asbestos. The jury fairly awarded $2 million dollars to Roland Grenier, who was so critically ill that he could not attend the trial. Unlike many juries in asbestos trials, the Delaware jury did not award punitive damages. In and of itself, this relatively small jury award would not be cause for alarm. But the manufacturers who fund the ILR are worried that more asbestos cases will find their way to Delaware’s courts. Due in part to the volume of asbestos litigation, many plaintiffs are now limited in the venues in which they may bring mesothelioma and other asbestos-related lawsuits. Those plaintiffs who for whatever reason are unable or unwilling to bring their suits in their own state are beginning to use a centuries-old doctrine that allows corporations to be sued in their home state. And since “The Big Three” and countless other companies with asbestos liability are incorporated in Delaware, Delaware courts may be used more often in asbestos litigation. There are of course thousands of pending and potential mesothelioma lawsuits across the country. Many of the lawsuits are against the same entities, entities which knowingly allowed their workers to be exposed to asbestos. And the last thing those entities want is to be brought before the fair judges and juries of Delaware. So rather than take the risk that Delaware juries will make more fair awards, some companies with asbestos liability are working to tie the hands of Delaware’s judges and juries under the name of “reform.” Conclusion The fact is that Delaware has and has always had a remarkably fair and balanced justice system – a fact proven by the ILR’s own studies for the past six years. Texas and West Virginia are two states which both the ILR and the AAJ condemn, and both states have enacted numerous “reforms.” Again, if “reforms” worked, Delaware would be consistently ranked as having one of the worst civil justice systems instead of the best. Perhaps Delaware jurors may not be kind to future asbestos defendants. But it is simply unfair to tie the hands of Delaware judges and juries to prevent them from fairly treating future plaintiffs in future litigation.
I've often said that I got into defending the civil justice system because the hypocrisy of the "reform" movement absolutely sickens me. I just realized that David gave some prime examples of that hypocrisy today. Earlier today, I pointed out how many "reform" laws shift costs from corporations to taxpayers. David responded by accusing me of making a prepackaged argument.. and of course, refusing to address my actual argument. Later that same day, the man who accused me of using prepackaged arguments made a post with such hoary old "reform" buzzwords as "greed" and "personal responsibility" and engaged in misdirection by ignoring the merit of a new cause of action and instead condemning it because lawyers will make a lot of money. Yeah, that's not a prepackaged argument. Ignore the fact, engage in demagoguery, accuse trial lawyers of making too much money, use words like "frivolous lawsuits" and "personal responsibility" and recycle the same tired arguments insurers have been making since at least the 1970's. All the better when the people complaining about our "litigious society" just happen to be lawyers. If being a lawyer is such a detestable thing, why on Earth should anyone trust anything David Nieporent or his lawyer cohorts have to say? The truth is that being a lawyer is one of the most honorable professions there is. Lawyers fight for those who cannot fight for themselves. Lawyers prevent the strong and the rich from violating the weak and the poor. Lawyers protect us from tyrannical governments, rapacious executives, and negligent citizens. Lawyers are second only to soldiers in protecting the liberty of every American citizen. Remember that the next time you hear a "prepackaged argument" about frivolous lawsuits, tort taxes, out of control juries, personal responsibility, and the rest of the corporate-sponsored focus-group-tested buzzwords and catch phrases that negligent corporations use to try and persuade Americans to throw their rights away.
Below, David Nieporent bemoans the creation of a new cause of action: Just what we need: more causes of action. If you've ever wondered why this country is overlawyered -- besides greed and lack of personal responsibility, I mean -- you might want to look to our law schools, where law professors with too much time on their hands spend some of it thinking of new ideas for increasing litigation. The latest example, from Fortune.com's The Browser: The mere act of forwarding an email or posting an exchange to a website is grounds for legal action, according to University of Arkansas law professor Ned Snow. In a paper to be published in the Kansas Law Review this summer, Snow contends that one of the most common acts of the digital age is a violation of privacy and warns that our courts are running headlong into this issue. ...And if there's big money to be made somewhere along the way, well, I guess that's just the price we all have to pay. Source: Overlawyered: Forward an email, get sued? David apparently would prefer that as society and technology evolves, the law stands still. Why, if the law never evolved, we wouldn't have such "problems" as minority rights, voter rights laws, school integration, Miranda rights, the ability to sue the government if a police officer brutalizes you, etc. While David might prefer a justice system from the 19th century in which injured persons had limited rights of redress, I prefer a justice system that evolves and adapts to new wrongs. I doubt David would complain about the evolution of law that allows pharmaceutical companies to protect their research into biotechnology, or that allows companies like Microsoft to prevent their competitors from stealing their source code. As technology marches on, so too must the law. It must evolve to protect individuals, corporations, and society. And if there's "big money" to be made by enforcing the rights of citizens and corporations, well, that's not a very big price for America to have the most robust justice system in the world. David, if you want to rail against greed and the "overlawyered" nature of the country, why don't you do all your work pro bono, or better yet, quit practicing law. I just love how defense lawyers, who charge hundreds of dollars per hour, complain about greedy lawyers and those injured plaintiffs who dare to demand their medical bills be paid by the entity that injured them. Cross-posted to TortDeform
I saw this over at Point of Law: "Just out in The American: our own Jim Copland pokes some holes in New York Times reporter Stephen Labaton's supposed expose of lax enforcement practices at the Occupational Safety and Health Administration: ...here’s the rub: under Bush’s tenure, American workplaces have actually gotten safer. From 2000 to 2005, workplace fatalities fell from 5,920 to 5,702—a slightly better annual rate of improvement than under Bill Clinton’s tenure. Non-fatal workplace injuries have also fallen from 6.1 to 4.6 cases per 100 workers, a decline of almost 25 percent." Source: PointofLaw.com | PointOfLaw Forum: OSHA and its critics From 2000 to 2005, workplace fatalities dropped by 200. During that same period of time, over 2 million manufacturing jobs were eliminated or shipped overseas. So we took 2 million workers out of dangerous jobs and saw 200 less fatalities. Hardly evidence that OSHA under Bush has been as effective or more effective than under Clinton. The manufacturing sector accounts for roughly 15 million workers, and accounts for roughly 20% of nonfatal injuries. One would presume that since manufacturing jobs declined by 15%, that would be a significant reason why nonfatal injuries were down, too. Again, not compelling evidence that the OSHA's policy of "Trust and don't verify compliance" is making workers safer.
Jim Copland is OK in my book because he's also a Casino Royale fan. But I have to take issue with his recent post at Point of Law: "And with increased threats of criminal sanctions for corporate managers, directors, and auditors, the leaders of publicly traded companies in America have had to devote far more time to accounting and compliance issues than to growing their businesses." Source: PointofLaw.com | PointOfLaw Columns As opposed to allowing accountants to cook the books and ignoring the rules like Enron, for example. And SOX is purportedly a failure. The point of Copland's post is that the legal and regulatory climate in the U.S. is driving IPO's overseas. Perhaps the executives of these companies will follow in the footsteps of people like Ken Lay and run their companies into the ground and devastate the economies of the countries that hosted their IPO's. Honestly, if an executive is so afraid of having so sign off on the authenticity of the company's financial statements.... what does that tell you about the executive's ethics?
Walter Olson, in an attack against a trial lawyer, inadvertantly disclosed something about tort "reform" that many prefer to keep secret: That tort "reform" shifts costs from corporations and their insurers to the taxpayers. The quote below sums it up: "We didn't say we were suing nobody," Lawrence said. "All we wanted was the insurance company to pay for my son's medical bills. That's all we wanted. "We don't want no $10 million. We're living fine. Whatever the insurance company doesn't pay, Medicaid pays. We don't need a lawsuit. Now, we've got all these people against us and it's not fair because it's not true." (Emphasis added.) Source: Overlawyered: Mom: I never authorized lawyer to sue school over football injury And who pays for Medicaid? You do, I do, and so does every other taxpayer. There is no such thing as a free lunch; regardless of whatever laws are passed in the name of reform, someone will have to pay for the medical bills of injured people. The question is who should pay for those bills. Supporters of the civil justice system believe that those who caused the injuries should pay, or their insurers should. Corporate lobbyists would prefer a system where taxpayers pay the bills for the injuries caused by their employers. And in the spirit of Orwell, they push for such a system by claiming there's a "tort tax" that affects consumers. When Medicaid, Medicare, or another governmental program pays for an injured person's medical bills, it costs the taxpayers. When private health insurers pay the bills, it costs the members of that health plan in the form of higher premiums. And if no one can afford to pay the bills, then medical providers raise the prices everyone else pays; that's why it's $10 bucks for an aspirin at a hospital. Each successive "reform" that makes it more difficult to bring a lawsuit makes it more likely that taxpayers will end up buying a "free lunch" for the corporation who caused the injuries in the first place. Why should taxpayers be forced to pay for the damages caused by a corporation's negligence? Cross-posted to TortDeform
Per Jack's request, I removed his contact information from my website. Not out of fear of litigation, but because I'm basically a nice guy. I was surprised to hear from Jack, as none of the other people I've called out have contacted me. (I'm still waiting to hear from Steven Hantler, Sherman Joyce, Maurice Greenberg, Bernie Marcus, John Engler, etc.) Here's an excerpt of the e-mail exchange between Jack and me: Justinian: "Have you ever considered that maybe the problem you’re trying to solve isn’t caused by video games, but by poor parenting and the parents who don’t supervise their kids? All the video games you rail against are $50+ and nine times out of ten the kids get that money from their parents. Even if they don’t, perhaps their parents should monitor the software the kids are installing." Jack: "Get lost" Yes, God forbid someone blame the parents for anything that goes wrong. Teen pregnancy? Not the parents' fault for failing to stress safe sex, it's that devil MTV and the sluts on Laguna Beach. Drug problems? Not the parents' fault for failing to give the kid a real education about drugs, it's those darned rappers and their marijuana promoting music. Kid snaps and goes on a shooting spree? Not the parents' fault for failing to notice their kid needs help, and getting them that help. Nope, it must be those evil video games. You know, being a parent is a tough job. To do it right, you can't be too busy to interact with your kid. You can't be so self-absorbed as to not notice your kid is seriously depressed or has anger problems. You can't be so naive as to believe your kid won't have the same hormonal urges you had as a teenager. Being a parent is an incredible responsibility. And when parents fail to meet their responsibilities, they share the blame when their child does wrong. But rather than admit the hard truth that they failed as parents, people like Jack Thompson's clients have to find SOMEONE ELSE to blame for their failures as a parent. If you think Grand Theft Auto is going to turn your kid into a gun-toting psycho, then here is an idea: exercise your parental right and duty of supervision and don't let your kid play it.
Seems like Professor Fink and I are in agreement about the made-up "tort tax." The Chamber’s $3250 per family figure falsely assumes that all tort litigation is “frivolous”. It also ignores the cost of injuries and other harm caused by defective products, professional negligence, and other torts. A statement by Larry Akey, a Chamber spokesperson, reflects the cavalier attitude toward facts that typifies “tort reform” propaganda. When the Wall Street Journal’s “Numbers Guy” pointed out that the average U.S. family size, according to the Census Bureau, is only 2.6 people, and not 4 as the Chamber’s figure assumes, Akey responded, We say the typical American family is Mom, Dad, brother and sis. […] We can split hairs about what the correct number might be. My response is, how much should the American public pay for a broken lawsuit system? In other words, we can base our claims on valid data, or we can just make shit up. (Emphasis added.) Source: Chamber of Commerce spouts more tort system distortions « Debris Well said, Professor. Well said.
By now, we've all probably heard about the judge who is suing his dry cleaners for millions of dollars. Interesting case. I found the following opinion of the case to be even more interesting. Particularly the last paragraph. Roy Pearson is a guy who took his pants to his neighborhood dry cleaners for alterations. First, the cleaners lost, or at least misplaced, his pants. Later the cleaners produced a pair of pants that it said was Pearson’s, but Pearson denied that they were his. It’s not clear how or why things got out of hand. it rarely is in cases like this. It seems that Pearson demanded that the cleaners pay for a new suit. The cleaners must have refused, because one thing led to another, and soon they were in litigation. Big time. Suffice it to say that the dry cleaners probably regrets not buying Pearson a new suit. It eventually offered him much more to settle the case, first $3,000, then $4,600, and then amazingly, $12,000. By this time, however, Pearson had figured that the cleaners owed him even more, a lot more. $67,280,000 more, to be exact.... I haven’t told you the part of this whole story that grabs me the most. It’s about Pearson. He’s a lawyer. Not any old lawyer, but also a judge, an adminstrative law judge. That’s what makes this case the anti-poster child of tort deformation. Why? Because one of the key aims of tort deformation is to do away with jury trials. Replace jury trials with what? Would you believe administrative law judges? Source: oneillaw.com » Blog Archive » Poster Boy For Tort Reform — Not! By the way, it's been proven repeatedly that judges award more money than jurors do. Yet another reason to question the logic and motives of the "reform" lobby.
Then why don't manufacturers worry more about them? - A Recent Survey Published by the National Association of Manufacturers Found that American Manufacturing Companies Ranked the “Fear of Litigation” at the Bottom of Their Concerns. The National Association of Manufacturers recently released a survey of manufacturers in the United States showing that the “fear of litigation” ranked at the bottom of their list of concerns:
“Please rate the following factors in terms of their negative impact on your company's operations (with 1 representing the greatest negative impact and 10 the least).” 2.9 Cost of non-wage compensation
3.5 Cost of materials used in production
4.0 Inability to raise prices
4.1 Energy prices
5.0 Foreign competition
6.1 Taxes
6.3 Cost of wages
6.4 Shortage of qualified workers
7.4 Regulations/corporate governance rules (Sarbanes-Oxley)
7.8 Fear of litigation Source: South Carolina Personal Injury Law Blog: More on Bogus National Chamber of Commerce “Study” / Propaganda Attack Against Civil Justice System I would be remiss if I didn't note that the National Association of Manufacturers is the same corrupt outfit that refused to strip convicted felon Randy Cunningham of the NAM award for legislative excellence. NAM is also run my former Michigan Governor John Engler, who presumably got this plum $500k+ job in return for the tort "reform" legislation he passed in Michigan. Legislation that is so bad, current Michigan Republican legislators are working to repeal it.
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