The real hypocrites in the drama surrounding Bork's lawsuit
By now, anyone who reads blawgs is aware that conservative icon Robert Bork has filed a million dollar lawsuit against the Yale Club in New York City as a result of injuries he sustained when he tripped and fell at the club. A slip-and-fall lawsuit isn't ordinarily newsworthy, but this one is for several reasons.
- Former Supreme Court nominee Robert Bork is a leading conservative scholar who has written on more than one occasion that Congress should enact some sort of tort "reform" to protect business interests.
- Bork is not only asking for damages "in excess of $1 million dollars" but is also asking for punitive damages - which is nearly unheard of in cases such as his.
- Despite the fact that Bork is a leading constitutional scholar and law professor, his lawsuit makes two blatant and basic errors. First, he is requesting attorney's fees, which are not recoverable in a personal injury lawsuit. (This, perhaps more than any other, is the reason most personal injury attorneys operate on a contingent-fee basis.) Second, he also asks for prejudgment interest, which is not available in New York.
The New York Times and the Wall Street Journal have good coverage of the case, and I've written briefly at Tortdeform.com about reactions in the blogosphere.
First, a quick rehash of the facts as alleged by Bork in his lawsuit:
Bork was invited to speak by The New Criterion at the Yale Club in June of 2006. Instead of a traditional stage, the Yale Club had a foot-tall dais with a lectern on top. Bork, who was 78 at the time, tripped and fell while trying to step up to the dais. He injured his head and his left leg during the fall. However, he did successfully climb on the dais and deliver his speech. Bork reports that he suffered serious injuries that required surgery and months of physical therapy. He claims he was unable to work for much of the year, and to this day suffers from impaired mobility.
Eric Turkewitz notes that Bork's surgery may have been outpatient surgery. This suggestion is bolstered by the fact Bork's detailed complaint does not state he was hospitalized for his injuries. The fact that Bork was able to climb back on the dais, give his speech, and leave the event unassisted makes me question how severe the injuries actually were. But I am willing to give Bork the benefit of the doubt and assume he is not exaggerating the extent of his injuries.
Now, let's restate the fact pattern and omit the plaintiff's identity:
A 79 year old man tripped while trying to step onto a foot-high platform. He fell and hit his head and leg, but was able to give a speech and leave on his own. He has minor surgery and some physical therapy. A year after his injury, he sues the restaurant where he fell for over $1 million dollars plus punitive damages. What reaction do you think most "reformers" would have to such a case?
There's no need to speculate. Instead, let's look at the fact pattern from another famous case:
A 79 year old woman spilled hot coffee on herself while trying to put cream in it. She suffered third degree burns and needed surgery and months of physical therapy. Over a year after her injury, she sued the restaurant who served her the coffee and asks for punitive damages.
The case I'm referring to is of course Stella Liebeck's famed "McDonald's coffee case." There are definitely a lot of similarities between the cases: A 79-year-old is seriously injured by a product not generally considered to be dangerous, and the injuries are caused at least in part by the 79-year-old's own negligence.
It's not an exaggeration to say that the "reform" movement has crucified Stella and used her as exhibit 1 in the case against the civil justice system. Rare indeed is the "reform" advocate who hasn't criticized Stella or her lawsuit. But the "reform" blogs are strangely silent about Bork's suit - with one notable exception.
Let me give credit to Ted Frank at Overlawyered for having the courage to give his honest opinion of the case. Ted wrote, "Before someone accuses us of playing this down, let me be out front and say that I find Judge Bork's slip and fall suit against the Yale Club embarrassingly silly." "Embarrassingly silly" is quite polite compared to some of the comments from the "reformers" about Stella and her lawsuit. But the same readers at Overlawyered who live to vilify plaintiffs are instead attacking Ted for daring to suggest that Bork's lawsuit is silly and that Bork doesn't deserve punitive damages. One commenter stated, "Let me add that your insinuation that Judge Bork has capitulated to negative forces in the practice of law, to which he has vocally and persuasively combatted for years, is an unacceptable cheap shot at a great man."
As of the writing of this post, I haven't found any other article on a"reform" or conservative blog about Bork's lawsuit. The right's unwillingness to criticize their own has given rise to the witty acronym IOKIYAR - "It's OK if you're a Republican." Understandably, dozens of progressive bloggers have described Bork's lawsuit as a clear-cut case of IOKIYAR and have called Bork a hypocrite. (IOKIYAR also describes former Senator Rick Santorum and his wife's obesity lawsuit against a chiropractor.)
Perhaps Bork is a hypocrite. Then again, perhaps he's an injured citizen who truly believes he has a legitimate lawsuit. While my gut reaction is that Bork's lawsuit is baseless, I'm inclined to do for him what I'd do for any other similarly situated plaintiff: Put my faith in the jury system to sort out the matter. "Reform" advocates who criticize the jury system should take note of the fact that Bork requested a jury trial instead of a bench trial. If noted "reform" advocate Bork is willing to trust a jury, perhaps the other "reformers" should, too. Instead of attacking an injured 79-year-old, let's save the slings and arrows for the hypocrites who bash Stella but defend Bork.
The real hypocrites here are the many "reformers" who viciously attack Stella Liebeck for her lawsuit but who refuse to find fault with Bork or his lawsuit. Their unwillingness to criticize Bork reinforces my own belief that the "reform" movement is dedicated to ensuring only the rich and powerful have access to the civil justice system.
Cross-posted to TortDeform
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