Tort reform is a scam that punishes people to protect profits.
"Reform" groups have a vested interest in engaging in fearmongering over the civil justice system. The executive directors of most state "reform" groups earn six-figure salaries, which come from donors who believe the civil justice system is broken. A common charge levied against the tort system is that the legal climate is preventing businesses from coming to an area. Certainly, the "reform" movement has tried that in Alabama. Here's a letter to the editor that calls their bluff. New businesses rain on Alabama: Alabama may be in the midst of a severe drought as far as rain, but new businesses are raining down on our state. Notwithstanding the claims of some organizations, lawsuits do not seem to be preventing corporations from locating new plants in Alabama. On May 11, ThyssenKrupp approved a proposed $3.7 billion, 2,700-worker, steel-finishing complex in Mobile County. On June 12, The News reported Magna International Inc. is looking at a northwest Alabama site for a North American vehicle-assembly plant. Hardly the kind of activity you would expect to see from companies fearing the litigation explosion, or is there really such an explosion? According to U.S. Department of Justice statistics, the number of civil trials dropped by 47 percent and tort cases dropped by 31 percent between 1992 and 2001. However, as reported in The News recently, CEO compensation has seen a dramatic rise during this time. Of the companies listed in the Standard & Poor's 500, the CEOs received a combined $4.16 billion in 2006. If the minimum wage had increased at the same pace as CEO pay since 1990, the minimum wage would be $22.61 per hour. So, business is up, CEO pay is up, minimum wage is stagnant and tort cases have dropped. Hmmm, it does seem like there is a problem here. Jon E. Lewis Downtown Source: Letters, faxes, and e-mail- al.com Can you imagine the howls if a legislator suggested tying minimum wage to CEO salaries?
To most tort "reformers" Judge Roy Pearson's lawsuit was upsetting. But the "reformers" were truly outraged by something else: The fact that the AAJy condemned the lawsuit and came to the defense of the defendants. Unfortunately for the "reform" lobby, there were no trial lawyers to demonize in this case. So since Ted can't blame trial lawyers for this lawsuit, he does the next best thing: He plays the race card and accuses trial lawyers of opposing Pearson's lawsuit simply because Pearson is black. (Ted also describes Pearson as being poor, but since Pearson earns a bit over $100k per year, that claim fails.) We're excited to see Franklin join the world of reformers and recognize that many more lawsuits are frivolous than what Public Citizen recognizes. We encourage her to read the data and arguments of those she mistakenly claims to oppose, and to scrutinize those she mistakenly thinks are her allies a bit more closely. Why is it alright for wealthy white trial lawyers to extort billions from big business using the same ad terrorem tactics (and even the same consumer-protection laws!) as a poor African-American pro se did to extort $12,000 from a small business? We encourage Franklin to examine the Association of Trial Lawyers of America's racial double-standard. Source: Overlawyered: The Litigation Lobby's "frivolous" bait-and-switch: the Judge Roy Pearson pants-suit If Ted Frank is truly offended by racism, perhaps he should take a closer look at his employer, the American Enterprise Institute for awarding fellowships to Dinesh D'Souza and Charles Murray. In addition to blaming liberals for 9/11, D'Souza has also gained a reputation for being a racist for such unique writings as: The American slave was treated like property, which is to say, pretty well. [Justinian: Wow.] If America as a nation owes blacks as a group reparations for slavery, what do blacks as a group owe America for the abolition of slavery? [S]egregation was designed "...to assure that [Blacks], like the handicapped, would be...permitted to perform to the capacity of their arrested development. Sources: Dinesh D'Souza - SourceWatch, Dinesh D'Souza D'Souza is no longer with AEI, but Charles Murray is. He gained a great deal of notoriety in the mid 1990's when he wrote The Bell Curve, a book that theorized (among other things) blacks aren't as smart as whites, and it is their intellectual inferiority that prevents blacks from succeeding in America. Murray based this conclusion based partially upon "studies" performed by groups not generally renowned for their scholarship: -
Charles Lane discovered that 17 researchers cited in the book's bibliography were contributors to the racist journal Mankind Quarterly. Murray and Hernstein also relied on at least 13 scholars who had received grants from the Pioneer Fund, established and run by men who were Nazi sympathizers, eugenicists, and advocates of white racial superiority. -
Source: Media Matters - Altercation: You've got to be taught to hate and fear ...
In stark contrast D'Souza and Murray, the AAJ and its members fights for the rights of African Americans. For example, many of the companies that fund the AEI have been successfully sued by members of the AAJ for racial discrimination.  It's more than a little ironic for Ted to accuse trial lawyers of having a racial double standard. He's condemning the AAJ for opposing one African American's frivolous lawsuit, but Ted works tirelessly to deprive the members of the AAJ of the ability to file meritorious discrimination lawsuits on behalf of all African Americans.
Accusing one's opponents of being racist is truly the lowest form of ad hominem attacks. That Ted would resort to such foolishness shows just how foolish he is to criticize the AAJ for opposing Pearson's suit.
I wonder if Lawrence McQuillan of the Pacific Research Institute spent more time making up his fictional study of tort costs, or defending his study against those who expose it for being the sham that it is? I've lost track of all the letters-to-the-editor I've seen by McQuillan that attempt to prop up his rickety study. Here's an excerpt of another one that McQuillan wrote in response to Ralph Cook's letter to the editor. Cook stated that a Tillinghast-Towers Perrin report contains "a long list of costs not at all associated with the civil justice system." We disagree. The report includes costs such as fender-benders and insurance CEO salaries, as Cook mentioned, because it is a comprehensive accounting of direct tort costs. Fender-benders are torts, and the tort-related portion of CEO salaries is an overhead cost of making tort-damage payments. (Emphasis added.) Source: Your views- al.com Funny - whenever I look at an annual report of an insurer, it doesn't break down it's CEO's compensation by "tort-related" compensation. What the hell is that supposed to mean, anyway? Does that mean that if 25% of an insurer's business is based on liability insurance that 25% of the CEO's salary is tort-related? Or is it a measure of how much time the CEO spends tending the liability portion of the business? If so, did insurers send McQuillan the timecards for their CEOs? I think I've got it! The "tort-related portion of CEO salaries" is just a meaningless term that McQuillan made up to hide the fact his meaningless study relies on meaningless information to come to a misleading conclusion! McQuillan and the PRI have been taken to task by many leading economists, scholars, and jurist. Judge Richard Posner wrote a scathing critique of their study, and he used phrases like "adding apples and oranges," "assume without evidence or analysis," and "fictitious." Some of the better portions of Posner's critique are below: "...It is impossible to determine from Tillinghast-Towers Perrin’s report what the sources for most of its data are, and so the figures I have quoted must be taken with a grain of salt; indeed, so far as I can tell, they may be completely unreliable. They are almost certainly exaggerated, given the financial connection between the firm and the insurance industry... ...The authors of Jackpot Justice know the difference between a cost, which in economic terms is a reduction in the amount of valuable resources, and a transfer of wealth from one person to another that doesn't reduce the total amount of resources but merely redistributes them. The $128 billion figure is a transfer, not a cost... ...The sum of $328 billion and $359 billion is $687 billion, which is almost $200 billion short of the authors' grand total of $865 billion. The excess malpractice costs and accidental-death costs they estimate at less than $50 billion, so there is still a big gap. I can't figure out how they fill it.... ...The figure, however--the authors' estimate of the net social loss created by our tort system--is, as I have tried to show, fictitious." Source: The Becker-Posner Blog: Is the Tort System Costing the United States $865 Billion a Year?--Posner I wonder if McQuillan includes the cost of preparing his propaganda about the tort system in his estimates of the cost of the tort system?
Ken Connor at Townhall.com writes a piece that explains why Federal "reform" legislation goes against Federalist principles. Conservatives should not embrace an agenda that relieves wrongdoers of the consequences of their wrongdoing. Affirmative action for wrongdoers can hardly be described as a conservative approach to problem solving. Furthermore, Americans have historically rejected the idea of a "privileged class" that is allowed to operate under a different set of rules from everyone else. "Equality under the law" is a proud American tradition. Most Americans understand that when they act irresponsibly and put fellow citizens in harm's way, they will be held accountable for their conduct. There should be no exceptions for the rich and powerful. Rich or poor, big or small—accountability for the consequences of one's actions should be the norm for all members of a just society. Source: Townhall.com::Thompson, Torts, and True Conservatism::By Ken Connor
Ralph Cook wrote a letter to the editor in which he criticizes the propaganda study issued by the Pacific Research Institute: The $865 billion figure PRI advertises contains a long list of costs not at all associated with the civil justice system. For example, the Tillinghast study which PRI calls the "gold standard" and bases much of its study on, says tort costs in the United States are around $279 billion. Business Week, one of the corporate community's most trusted publications, said Tillinghast's total included "everything from payouts for fender-benders to the salaries of insurance CEOs," and is "a wild exaggeration." With Tillinghast's grossly exaggerated total tort costs of $279 billion, PRI's total, largely based on and more than three times Tillinghast's, is even more far-fetched. Source: montgomeryadvertiser.com :: Inflated figure undercuts premise The "reform" movement has a history of relying on made-up data. Regular readers will recall Professor Fink's take on another bogus study.
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
If you're looking for a great f-bomb laden critique of the Bush administration and its pro-business, anti-consumer policies, Lance Mannion just posted a good one: Don't worry. The market will take care of it. When enough people get sick and know what companies' products made them sick and stop buying from them and when enough stores that carry those products close and enough lawsuits are filed, then all that tainted and spoiled food will just magically vanish from the marketplace. Except the Republican Free Marketeers want to take away your ability to sue. They call it tort reform. It's like Social Security reform. "Reform" is Republican for "screw the poor and the middle class." Nevermind. At least on your sickbed or in your grave you'll have the satisfaction of knowing your suffering saved the rest of us a few pennies per pound on imported produce. Source: Lance Mannion: They poison everything they touch He's right. A great many "reformers" do indeed think the invisible hand of the market will sort everything out and that government regulation will just cost money. It seems all the invisible hand can do these days is flip us a very visible bird.
The National Association of Manufacturers just yesterday posted about the incredibly flawed study done by the Pacific Research Institute about the supposed costs of the tort system: 
"Out-of-control litigation and a broken legal climate cost Americans the equivalent of almost $10,000 for every family of four, a study by the Pacific Research Institute has determined. Here to describe his findings from "Jackpot Justice: The True Cost of America's Tort System" is the study’s author, Lawrence J. McQuillan, PRI’s Director of Business and Economic Studies. Renee Giachino of The American Justice Partnership adds the AJP's latest news and views on tort reform. America’s aging infrastructure is a major factor in manufacturing’s ability to compete. John Horsley, executive director of the American Association of State Highway and Transportation Officials, highlights a new report that lays out the full scope of the problem." (Emphasis added.) Source: This Week on America's Business It would have been better if NAM had never cited the PRI's study, but it's embarrassing they cited it this late in the game. Note that just one paragraph later they point out a real problem to manufacturers...
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.
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!
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.
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.
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.
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" »
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.
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.
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
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?
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.
I think I read something somewhere about pride not being a good Christian trait. Keep that in mind as you read Jack Thompson's crazy lawsuit. Surely Jesus wouldn't approve of Thompson's constant back-patting and ego-stroking.
One thing I would note: In the above complaint, Thompson brags dozens of times that his faith motivates him to file baseless lawsuits, endure death threat, spend his own money, and crusade for others on the behalf of Jesus.
But why isn't his faith strong enough to force him to change his telephone number? "John B. Thompson, Attorney
Plaintiff and Counsel, Florida Bar #231665
*Removed by request of Jack Thompson*
305-666-**** Removed by request of Jack Thompson"
On that note, I think I'm going to go play some Doom 3 in honor of Jack Thompson. You know, isn't it also ironic that such a "Good Christian" is so upset about a game that's about going to Hell and killing demons?
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It's not uncommon to hear corporate shills and other tort "reform" advocates claim that the reason we don't have more vaccines is because of the threat of litigation. Like most reform claims, this one isn't based on facts. "Simply stated, the reason is limited profit and large risk. At best, vaccines bring in $6 billion worth of revenues, about 1.5% of the current total annual pharmaceutical market worldwide. The market is splintered among more than a dozen pediatric vaccines and another dozen or so for travelers, other at-risk individuals, and the military. As a result, the market for any given vaccine is substantially below the $500 million per year threshold that a pharmaceutical company considers as a viable product to develop. While companies may start to see an expanded return on R&D investments for certain products due to the over-the-counter market, that is not currently possible for vaccines due to requirements for parental administration (except for some oral and nasal) and the requirement for a "cold-chain" of most vaccines due to stability issues. Thus, the current average cost of bringing a vaccine to market is larger than can be borne by the market for most of the current vaccines. Although there are some vaccines which have the potential for a greater than $1 billion dollar market (e.g., hepatitis B virus, human papilloma virus), the total vaccine market is so limited that the required return on investment for commercial pharmaceutical and biotech companies does not justify investment in vaccine development." (Emphasis added.) Source: The Scientist : The Vaccine Conundrum Does the tort system deter the development of vaccines? Perhaps to some extent. But the real deterrent must be the fact that there isn't enough demand for vaccines for them to be profitable! The authors make several suggestions on how to bridge the funding gap so as to encourage the development of new vaccines. That pharmaceuticals are busy pumping out weight loss and impotence drugs instead of developing life saving vaccines would make Jonas Salk roll over in his grave.
Jurist discusses the settlement between "lawyer" Jack Thompson and Take-Two Interactive: Video game publisher Take-Two Interactive [corporate website] reached a settlement on Thursday with anti-game activist lawyer Jack Thompson. Take-Two agreed to drop a contempt of court charge against Thompson stemming from a prior legal battle [GamePolitics.com report] over the video game Bully. Source: JURIST - Paper Chase: Take Two, Thompson settle Bully, GTA4 disputes I have a different idea for a settlement that involves my foot and Thompson's ass. Nutjobs like him have no business practicing law, and it's because of nutjobs like him that lawyers have such a bad rap.
Walter Olson quotes Charity Doc's post about problems with the health system. Surprisingly, Charity Doc considers the following to be defensive medicine. spread[ing] the liability by consulting other doctors and specialists to get everyone under the umbrella... Source: PointofLaw.com | PointOfLaw Forum: Does med-mal risk, like misery, love company? Obviously, I disagree that consulting with one's peers is defensive medicine, except perhaps in the most obvious cases. But the rest of Charity Doc's complaints are worth reading. He assesses the numerous problems with our medical system. Might I suggest we work on the other issues he brings up before we try and take away patient rights? "...When ~47 millions of Americans do not have health insurance, we have a big problem. When a person in America has to make a decision between food on the table or pills in a bottle to take for his/her medical problems, it is an national disgrace... When hospitals pass on the costs of healthcare to the public by marking everything up by 1000%, we all have to pay painfully... When hospital and HMO administrators without any clinical experience or medical background can dictate what tests and studies physicians can or cannot order, the ship is being run by idiots and is doom to sink... [If the HMO's are allowing the doctor s to get second opinions - I mean practice defensive medicine - what does that say? - Justinian]" Source: Fingers And Tubes In Every Orifice: Taking a break I suggest checking out the rest of Charity Doc's post as this is just a sampling.
Saw a nice quote I wanted to share. Tort "reform," bankruptcy "reform," voting "reform," attacks on unions, media consolidation, and the manipulation of the Justice Department are each just a small part of the puzzle. At each point, the objective is to remove the avenues of redress available to mere citizens who might oppose maximal surplus extraction by their betters. Source: Justice For None - The "Have Mores" Want It All...
Overlawyered implies that the legal system is partially to blame for the Virginia Tech massacre. How is it to blame? Apparently because in America, you can't get committed or arrested for writing violent plays: "One play attributed to him, called "Richard McBeef," describes a 13-year-old boy who accuses his stepfather of pedophilia, and ends with the boy's death. In another, called "Mr. Brownstone," three high-school students face an abusive teacher. "I wanna kill him," says one character. "I wanna watch him bleed like the way he made us kids bleed," says another." Source: ABC News: Killer's Note: 'You Caused Me to Do This' "Richard McBeef" sounds similar to Happiness, and Mr. Brownstone sounds similar to Sleepers. I can't be certain, of course, but I bet neither of the writers of those films were investigated.Look - people write sick, disgusting things every day. It's probably not an exaggeration to say at least one million authors have written stories or plays as or more violent than the two in question. But so far this year, only one of those authors has gone on a shooting spree. It's neither reasonable nor practical to expect law enforcement to get involved any time someone writes a disturbing story or play. The police are therefore not at fault for failing to investigate Cho for writing violent plays. However, they may be at fault for failing to investigate Cho on other grounds: "Police documents today showed authorities suspected Cho may have been the source of two bomb threats last week targeting Virginia Tech engineering buildings." Source: ABC News: Killer's Note: 'You Caused Me to Do This' Cho had to jump through a couple of small legal hoops to buy firearms because he's a resident alien; police investigating a guy for making bomb threats don't take notice of the fact the suspect just bought two guns within the last 30 days? If that doesn't say "red flag," I don't know what does. Especially since the police had already been contacted about the disturbing plays he had written. Bu on the bright side, not even three hours after his "Quote of the day" post, Olson rightfully criticized attorney and plague-on-society Jack Thompson for blaming violent video games for the shooting. Jack - you're a nutjob. Stop. Turn in your bar card, form a cult, and move to Guyana.
Columnist Tom Blackburn exposes how "reform" in Florida has made it far more difficult for injured workers to find a lawyer, unless they were catastrophically injured. In one case under the new law, the lawyer for the plaintiff was allowed to collect $229.70 for his efforts, which a different workers comp lawyer worked out as $13.75 an hour. That is not money in the lawyer's pocket. He had to pay the costs of doing business out of that. In short, the 2003 law has made it inadvisable to file a case that won't be a sure, quick and big settlement. If you get injured and don't have such a case, do not count on justice. (Emphasis added.) There are no limits on the pay of attorneys who defend insurance companies against plaintiffs. Source: War on lawyers hits the injured And that's what tort "reform" is all about - denying justice to injured people.
Considering I'm one of four people in my age bracket who doesn't have a MySpace, it won't bother me if it does. Last week, PhotoBucket became the latest of Rupert's outlaws. The company, a photo- and video-sharing service, had its videos, remixes and slideshows blocked from MySpace. Why? PhotoBucket users were displaying slideshow widgets containing a Spiderman 3 ad. A MySpace spokesperson explained that the company makes a big distinction between promotion (as in pushing your indie band) and advertising (as in posting slideshows skinned with a promo for a major motion picture from Sony, a Fox competitor). Such advertising is verboten by MySpace -- as is any instance in which users get paid to post something. Consider, for instance, Indie911's Hoooka widgets, which give posters 10 percent of each sale. Source: Note to Everyone: MySpace Is Not the Web. Get Ready to Move On - I have mixed feelings here. On the one hand, I think MySpace is a bastion for illiteracy and stupidity, as well as horrendously bad web design, and therefore its death wouldn't be a bad thing. On the other hand, I'd hate to see anything happen that benefits Rupert Murdoch. So I guess I'll just hope he loses his $580 million on MySpace because Google comes up with something better.
I came across this older article about Ford and how its in-house legal department handles the myriad of legal issues that an automaker will have to deal with. I was impressed that in order to save the lives of police officers, Ford installed free gas tank shields on 350,000 cars. What most impressed me was that it did so in response to accidents that happened when Crown Victorias were rear-ended at 75+ mph, which is not a required Federal standard. "The Arizona summit resulted in the creation of a blue-ribbon panel composed of Ford engineers and managers, and law enforcement officials. But unlike some of these committees, this one was ordered to come up with solutions quickly -- in 90 days -- and it did. Ford agreed to install free shields to protect the fuel tanks in all police Crown Vics on the road (about 350,000). It test-crashed cars at 75 mph to confirm their effectiveness. And the company established a Web site to suggest how officers should position their vehicles during traffic stops. A short time later NHTSA closed its 10-month investigation, satisfied that the car was safe. In 2003 the New York State Senate held hearings, then closed its investigation shortly afterward. Within weeks California's state senate dropped its own inquiry without even holding a hearing. The first class action claiming the car was defective went to trial in 2004, and a jury in St. Clair County, Ill. -- which tort reformers label a "judicial hellhole" -- found for Ford in 75 minutes. That case was followed last year by the first personal injury trial. A Missouri jury found that the company was not liable for the officer's death (a finding of even 1 percent liability could have put the company on the hook for full damages). Few of the lawsuits remain; the company settled most of the personal injury cases, and the majority of the class actions were withdrawn or dismissed following the Illinois verdict. " Source: Ford: Teamwork Is Job 1 Ford did the right thing, and even a jury from "Judicial Hellhole #1" made the right decision.
I burst out laughing when I saw that Lawrence "Rich mosaic" McQuillan, wrote into the Madison County Record to complain about Laura MacCleery of Public Citizen for having the audacity to call the report the sham it is: Our study recognizes the importance of a healthy tort system, and says so. Unfortunately, today's system is out of control, and the data in our report illustrates this. Perhaps MacCleery should delve into our facts and figures before dismissing our findings out of hand.
Lawrence J. McQuillan
Co-author, "Jackpot Justice: The True Cost of America's Tort System"
Source: Madison County Record | PRI study based on fact
Why did I burst out laughing? Because the Madison County Record is the most slanted, yellow tabloid in print today. My good pal Evan Schaeffer explained in 2004: "From its inception, the Madison County Record was given away for free all over Madison County--at gas stations, grocery stores, anywhere that potential Madison County jurors were likely to pick it up. To those who practice law in Madison County, the Record's coverage of the courts was obviously one-sided, expressing a superficial pro-business point of view. It was also amateurish and hokey, with the look, feel, and less-than-stellar quality of a college newspaper. If you're interested, most of its content is online. (Their site looks a little less amateurish now, but the content is still as "balanced" as a Goebbels pamphlet." - Justinian)
Given these clues that something was amiss, it wasn't much of a surprise when the Washington Post broke the story earlier this week on its front page: the Madison County Record isn't a newspaper at all, but is a weekly advertisement that's being bankrolled and published by the tort reformers at the U.S. Chamber of Commerce. The Washington Post's article is here (free registration required). "
Source: Evan Schaeffer's Legal Underground: Our City's Most Amateur Newspaper, the Madison County Record, Is Revealed To Be a Fraud
No wonder McQuillan wrote into the Madison County Record, eh? I bet he was shocked that the MCR printed his letter....
Technorati Tags:
Goebbels, Lawrence McQuillan, Madison County Record, Pacific Research Institute, PRI, propaganda, Public Citizen, tort reform
Saw a few blogs grousing about SB 1296 in Illinois: Among other things, the proposed law would allow the plaintiffs’ lawyers (the personal injury lawyers) to manipulate which defendants in a personal injury case actually go to trial...
Source: ILLINOIZE: Diverse Coalition Opposes Trial Lawyer 'Deep Pockets' Bill
Damage caps do the same thing, only in reverse. They allow defendants to determine which cases go to trial. Those in which the defendant really has something to hide, such as the deaths of dozens of customers due to defective tires or medicines, would never go to trial as the defendant can force the plaintiff to settle for the cap.
One way you can tell this bill isn't all bad is to look at who opposes it. A partial list includes: • Illinois Business Roundtable
• Illinois Chamber of Commerce
• Illinois Petroleum Council
• Illinois Insurance Association
• Illinois Association of Defense Trial Counsel
• Illinois Manufacturers Association
There's a list of anti-consumer groups if there ever was one, eh?
Technorati Tags:
damage caps, Illinois, SB 1296, tort reform
I read a little blog entry written by Frank Pasquale at Concurring Opinions about the proposed XM-Sirius merger, and part of it gave me a chuckle: "... [A] better industrial policy is to promote their consolidation (especially if it means undermining the Clear Channel leviathan!).
Source: Concurring Opinions: The XM-Sirius Merger
Anything that undermines Clear Channel is always good in my opinion. Check out the link in the quote above. It's a link to a great article at Rolling Stone that explains why music is bland, boring, and banal these days. Some great blurbs from the Rolling Stone article: "No other company in recent history has had so much power over what the world hears -- and so few top executives with a background in music. Several of the Mayses' friends and business associates say that popular culture has never come up in conversation; radio-division CEO John Hogan is a career ad salesman who says that he prefers talk to rock, rap or country stations. Brian Becker, the live-entertainment CEO, cut his teeth on motor sports and theater. One former Clear Channel executive told Rolling Stone that at annual corporate meetings, sales awards are given out for more than an hour -- and programming prizes take up only ten minutes. "You're controlling all this media, and what you're saying is, 'We don't care about what's on the air,'" he says. "All they care about is moving product."
As Dixie Chicks manager Simon Renshaw puts it, "They don't care about music. They care about ad rates."
Lowry Mays, who refused to be interviewed for this article, told Fortune in 2003, "We're not in the business of providing news and information. We're not in the business of providing well-researched music. We're simply in the business of selling our customers products."
Source: Rolling Stone : Inside Clear Channel
Damn. No wonder I can never find anything good on the radio. The last album I've enjoyed is by Angels & Airwaves. I've listened to it at least 100 times, and considering it's founded by the former lead of Blink 182, I'm kind of embarrassed to admit I like it so much. Since it's good, I won't expect to hear it on any Clear Channel stations. Not as long as the Pussycat Dolls brand (not a band - bands don't replace their members every six months) keeps putting out "music."
Saw a quote from Pope Benedict XVi's upcoming book Jesus of Nazareth, and it immediately made me think of damage caps. "Confronted with the abuse of economic power, with the cruelty of capitalism that degrades man into merchandise, we have begun to see more clearly the dangers of wealth and we understand in a new way what Jesus intended in warning us about wealth." (Emphasis added.) Source: Whispers in the Loggia: Benedict's Book Club I don't feel bad that the Pope was more clearly able to articulate my spiritual objections to damage caps, no matter how high they may be. If you believe in Jesus, if you believe that human life is sacred, if you believe what Jesus taught about money, then you must believe that damage caps are arrogant and immoral. I'm hardly a religious man, and I'm definitely not a Catholic, but I may have to check this book out.
Henry Greenspan, one of my favorite contributors to TortDeform, had a top-ten list of what pet food manufacturers can learn from pharmaceuticals. Here are my two favorites: 5. The "tort tax" will inevitably drive up the cost of pet food, with the consequence that millions of pets will simply starve to death on your sofa. Eventually, so will you. 6. Like pharmaceuticals, pet foods are regulated by the FDA, the gold standard of safety throughout the world. FDA's approval of a doggy biscuit should preempt state tort liability. Source: What Pet Food Manufacturers Can Learn From Drug Companies | Tortdeform Now, neither Henry nor I find anything funny abou the tragic deaths of animals due to contaminated pet food. If I had my way, punitive damages and prison sentences would be handed out for this catastrophe; I like animals more than I like most people.
Many tort reformers try and use dollars and cents to persuade the public that we should drastically change the civil justice system. A particularly salient example is DaimlerChrysler President Tom LaSorda’s recent claim that tort costs add $500 to the cost of every vehicle. While it is worth noting that LaSorda himself admits this figure is inaccurate – oh, is it ever - refuting that number isn’t the point of this post.
Mr. LaSorda, for the sake of argument, I won’t challenge your claim that $500 of the price of every vehicle you sell is due to the costs of the tort system. Instead, I ask you, “So what?” Catalytic converters and other smog-control devices add more than $500 to the cost of a car, but you don’t argue that we need to gut the Clean Air Act; the purpose of the Clean Air Act is to protect the environment, not to help manufacturers sell cars.
The purpose of our civil justice system is (at least) threefold:
1: To make tort victims as whole as possible.
2: To hold tortfeasors financially accountable for their misdeeds.
3: To deter others from committing torts.
The purpose of our civil justice system is not to help manufacturers sell cars. So when you claim that $500 of the cost of my PT Cruiser comes from the civil justice system, I again ask you, “So what?” That figure might make for an interesting trivia question, but it doesn’t justify changing the civil justice system. The purpose of our civil justice system is not to help manufacturers sell cars.
Mr. LaSorda, you strongly imply that $500 is simply too much for the civil justice system to add to a car’s price. Do you have a number in mind that would be fair? I suspect you do. And I suspect that number is $0.00. Your company supports legislation that would prohibit any liability lawsuit over any product that was approved by a federal regulatory agency. The effect of such legislation would be to almost completely eliminate product liability lawsuits against auto manufacturers; such legislation would also frustrate the purposes of our civil justice system. I don't call that reforming the justice system, I call it destroying the justice system.
More than once, I’ve invited readers to help me see the relevance in the tort “reform” debate of the cost of the civil justice system, only to be met with vague arguments and various personal attacks. I again repeat my invitation. Am I off the mark when I argue that helping Tom LaSorda sell more cars is not a valid reason to change our justice system? Note that I am not arguing whether tort "reform" will help sell more cars. I am instead arguing that even if it did, economic benefits do not constitute sufficient cause to change our justice system.
(Originally posted at TortDeform.com)
Over the years, there have been some fairly interesting comments. Some have been silly, some have been rude, and others have been thought-provoking. For the most part, I think I've only deleted comments that were out and out spam, such as those promising cheaper mortgages or various herbal remedies to a miscellany of ailments. Censorship isn't my bag, so if someone feels the need to make an ass out of themselves or drop f bombs in the comment thread, I can live with it. That said, I simply have to reply to the many comments about McDonald's and Stella Liebeck's case.
First off, let's talk about the hot coffee. Yes, coffee is supposed to be hot. I understand that. But 180-190 degrees is simply too hot for human consumption. I have a 180 degree thermostat in my car; would you want to drink water from a radiator, or would you think that's a bit too hot? If you're into third-degree burns, you're more than welcome to come sip from my radiator. Seriously though – no one expects to run up thousands of dollars in medical bills and need reconstructive surgery if they spill some hot coffee on themselves.
Second, I want to talk about Stella and her negligence. Could she have been more careful? Yes. Does that relieve McDonald's of responsibility? No. Why not? Because, quite frankly, the world is full of idiots. They cut us off in traffic. They can't figure out how to work their digital cable. They're afraid of "the Internets," as if there's more than one. They buy the herbal remedies spammers sell. They email their credit card numbers and social security numbers to complete strangers. Hell, 1,658,853 idiots voted to re-elect Rick "I'll sue you for making my wife fat" Santorum. I'm willing to bet money that by the end of the day, you'll run across an idiot. We all know the world is full of idiots. So do manufacturers and vendors – so they have a responsibility to try and make their products at least somewhat idiot-proof. In the law, the concept is referred to as foreseeability. If it's reasonably forseeable that some idiot will injure him or herself in a certain way, the manufacturer should either warn the idiot or try and prevent the idiot from causing the injury in the first place. Maybe it means putting stupid warning labels on products. Or disclaimers on tv shows/commercials. Or the little warning on your dash to use the brake before you move the car out of park. Much has been said about the lack of an appropriate warning label on Stella's coffee cup. Look at that last sentence. I called it a coffee cup. In actuality, it was a Styrofoam cup with golden arches all over it. The cup didn't specifically say coffee. Without some kind of a warning on it that the cup in fact contains hot liquid, some idiot might think the cup is full of soda, or water, or some other beverage that isn't hot. In Stella's case, perhaps the label should have said, "WARNING. This product is so ridiculously hot that if you spill it on yourself, portions of your flesh will melt. If you try and gulp this coffee down, you'll lose your sense of taste and need throat surgery. So for God's sake, PLEASE be careful with this cup of dangerously hot liquid." Once more, in case I wasn't clear – ANY DRINK THAT CAUSES THIRD DEGREE BURNS IS TOO HOT TO DRINK. And anyone who doesn't think McDonald's should have at least paid for the woman's medical bills is an idiot.
On the subject of McDonald's: I am not McDonald's. I don't work for them. I eat there only occasionally. I point this out because some people, for some reason, seem to think that their comments posted here about the quality of food at McDonald's will somehow make it to Ronald McDonald or whoever is running the show over there. As far as I know, they won't. I've had some really interesting visitors on this site, like from the White House and The Pentagon, but I don't recall anyone visiting from McDonald's. The odds are that if any McDonald's employees make it over here, it's to read more about "Free" creditreport.com and my experience with them. So, if you're not a fan of Quarter Pounders (Royale with cheese to my French readers), perhaps your comments should go to McDonalds.com.
At any rate, keep the comments coming.
At my college, there are quite a few students either in or interested in going into the medical profession as nurses or doctors. I know this because in almost every class I've taken, the first day of school includes a "stand up and introduce yourself" session.
I've found that if I tell the class I want to be a "personal injury attorney," professors end up making sarcastic remarks about suing doctors, and the medical students in the class glare at me or treat me with disdain. So I've started telling people that I want to be a "consumer rights attorney." This isn't a lie - I see myself filing many a lawsuit against sloppy credit reporting agencies and crooked creditors, as that's another area of law I feel passionate about. The checks on my wall from various pro se cases I've won help keep the fires stoked.
Honestly, I don't see myself doing much medical malpractice work. Not because I'm morally opposed to suing medical providers, but because the average medmal case is dry, boring, and scientific - three traits I find very unappealing. Sure, car wrecks aren't overly exciting, but at least I can try and bring some drama into the case: "And Mister Jones' SUV careened recklessly out of control, and plowed into my client's vehicle like a runaway freight train of death and destruction!" But most medmal cases turn on far more mundane details, such as whether 27 milligrams of such and such was too much or too little, or whether Doctor so and so breached the standard of care by waiting ten minutes to administer some medication instead of only five. I'm sure I could depose 1,000 doctors and never get a single one to do his Alec "Do I have a God Complex?" Baldwin impersonation.
So even though I doubt I'll end up suing many medical providers, I've realized I wouldn't want to tell my doctor that I'm a personal injury attorney. I've seen the way doctors react at the mere mention of injury lawyers, and quite frankly, I don't want to be treated by a doctor who thinks I'm an evil, evil man.
It truly is too bad that doctors and lawyers now have adversarial relationships even outside of the courtroom. If anyone has some suggestions on how lawyers can reach out to doctors, I'd love to hear them.
I grew up in Las Vegas, Nevada, a town that personifies the term “desert oasis.” If you go for a drive during the winter in Las Vegas, you’re likely to find a lot of things on the road: Drunks, trash, automotive fluids, blown tires, and even the occasional mattress. But one thing you absolutely won’t find is salt. Our winters are mild enough that they neither need salt nor sand to stay snow and ice free. A nice benefit of living in a town that doesn’t salt the roads is that your car won’t turn into a rusted-out claptrap, no matter how many winters it endures. Even if you’ve never been to Las Vegas, you probably didn’t need me to tell you rust isn’t a problem there. Anyone with even a small measure of common sense knows that cars don’t rust in the desert.
So imagine my surprise some years ago when I was looking at buying a new car in Las Vegas and the car salesman strongly suggested I invest in the factory undercoating to protect my car from rust. When I politely declined the rust protection, the salesman patiently explained to me how expensive rust is to repair, and again suggested I save myself money by spending a little bit of money now to prevent rust, rather than paying the much higher cost later. He looked me in the eye and told me that he was truly concerned about rust forming on the car, so he offered to cut the price of the undercoating by several hundred dollars; he wasn’t trying to rip me off, he was trying to protect me!
Anyone with even a small measure of common sense knows that car salesman don’t try to protect their customers. The only problem the car salesman was trying to solve was the fact that he wasn’t making enough money. I didn’t need the rust protection package, but he needed me to buy it so he used scare tactics to try and manipulate me into buying it out of fear. I saw through his ruse and bought neither the rust protection package nor the car.
I see more than a little similarity between that car salesman and groups like the American Tort Reform Association (ATRA). The ATRA is made up of a broad spectrum of corporations, ranging from auto manufacturers to cigarette makers to petroleum refiners and pharmaceutical companies. They have little in common except for one shared problem: the civil justice system doesn’t let manufacturers get away with selling products that injure or kill consumers.
To solve their shared problem, they need legislation that makes it harder to sue manufacturers of defective products, and even harder to make them pay for the damages those products cause. Just like that car salesman, they’re first trying to scare us by making us believe that the civil justice system is driving up the costs of products and sending manufacturing jobs overseas. Then, they offer to protect us from the civil justice system by selling us tort “reform” legislation.
Use your common sense for a minute. Which is more likely: That Philip Morris (a major financer of the ATRA and the tort reform movement) wants to protect us from the civil justice system… or that Philip Morris wants us to protect them from the civil justice system?
Philip Morris, Merck, Firestone, and many of the other corporations behind the tort reform movement have repeatedly been found liable for knowingly selling defective products that have injured or killed consumers. In criminal law, there’s a term for that: repeat offenders.
What would you think if a group of criminal repeat offenders suggested “reforming” the criminal justice system by reducing prison terms and making it harder to issue arrest warrants? Anyone with even a small measure of common sense would see such “reforms” as an attempt to reduce the criminal justice system’s ability to hold criminals accountable for breaking the law.
But for some reason, when repeat civil defendants offer comparable suggestions on how to “reform” the civil justice system, those suggestions are sometimes called “common-sense” reforms!
The corporations behind the tort reform movement simply have too much to gain to be trusted with something as crucial to our democracy as the civil justice system. By their own admission, the civil justice system costs corporate defendants billions of dollars per year. With billions of dollars at stake, why wouldn’t tort reformers try and pass legislation that will let them off the hook when they break the law?
The civil justice system belongs to and benefits all of us. Any legitimate effort to reform the justice system must then involve all of us, and not just large corporations. If the ATRA truly wanted to reform the civil justice system, they would work with injured consumers, consumer advocates, and yes, even trial lawyers, to help pass legislation that ensures justice for us all. Instead, the ATRA works tirelessly to pass legislation that will deny justice to many injured consumers. And no one with even a small measure of common sense would call that “reforming” the justice system.
This article is also cross-posted to www.tortdeform.com, an excellent resource in fight to preserve and protect our civil justice system.
Same drill - Mr. Frank in Black, me in Red.
1. Is Bunn-O-Matic distinguishable from Liebeck? You give four reasons.
Your first reason is the most fascinating. You suggest Bunn should not be liable because the coffee cup was the cause of the injury, not the coffee. But how does that differ from Liebeck? In Liebeck, Liebeck was the cause of the injury, not the coffee. If the intervening cause of the cup is enough to insulate Bunn from liability, why is it not enough to insulate McDonald's? Why couldn't a jury divide the liability between the cup manufacturer and Bunn (standing in the shoes of the retailer).
Liebeck was the cause of 20% of the injury, according to the jury. The other 80% was the fault of McDonald's for selling a product they admitted was unfit for its intended purpose and was therefore defective. Did the jury apportion fault incorrectly? I don't know - I wasn't present at the trial, I don't know what evidence was introduced or excluded, I don't know what the parties stipulated to, and I don't know what the witnessess testified to. Without having access to the same information the jurors had, I'm not qualified to substitute my own judgment for theirs.
Why couldn't the jury have divided liability between the manufacturer of the cup and Bunn (standing in Mobil's shoes)? None that I can see.
So you haven't distinguished the cases yet. Three of the four reasons ignores the court's reasoning in Bunn, and the fourth applies equally to Bunn and McD. Nor have you explained why Bunn is wrong.
To me, the easiest way to distinguish the cases is the fact that McDonald's admitted the coffee was unfit for human consumption - defective - and Bunn did not. It's pretty hard to convince a jury your product isn't defective when your own executives say it is.
Fascinating that you point out the deep pockets; isn't that the reason McDonald's was sued, rather than Liebeck acknowledging it was her own fault for spilling coffee on herself?
Again, Liebeck was 20% at fault. McDonald's was sued because they manufactured and sold the product. Their deep pockets were just an added bonus. If deep pockets were the goal, Liebeck would have also sued the coffee pot manufacturer, which may well have been Bunn.
2. To be defective, a product must be "unreasonably dangerous." And the judge reduced, not eliminated, the punitive damages. If the coffee is so "unfit", how come billions of cups are served? You try to create a new theory of liability over the lid, but, even aside from the reasons why that is improper, that wasn't the basis of the lawsuit.
A product doesn't have to be "unreasonably dangerous" to be defective. You used buckets and cars as examples; a bucket sold with a hole in it is defective, and a car that won't start is defective. The coffee was sold as a beverage to drink. McDonald's admitted it was unfit as sold for that purpose. Thus, the jury found McDonald's breached the implied warranty of merchantability and implied warranty of fitness for a particular purpose. Was their coffee dangerous? Probably. Unreasonably dangerous? Probably not.
3. You dodged the question of loser pays. You haven't identified a single case where tort reform prevents a plaintiff from recovering economic (as opposed to non-economic) damages. In loser pays, the loser would pay for the other side's experts.
You're advocating a different model of loser pays than what I often hear suggested - many tort reformers don't think the defendant should have to pay expert fees in addition to a jury verdict.
I oppose a loser pays model for the usual reasons:
1: Plaintiffs would be discouraged from suing in any instance where liability could reasonably be questioned.
2: It would benefit those who hire attorneys on an hourly basis at the expense of those who hire attorneys on a contingency basis. Unless you're suggesting a loser should have to tack on another 1/3rd of the verdict to cover a contingency fee.
3: Unscrupulous insurance adjusters would use loser pays as a way to discourage injured persons from hiring an attorney or suing. "You should really take this offer, because if you go to court and lose, it might cost you your home. Do you really want to take that risk?"
As for tort reform and economic damages? Tort reform itself isn't the culprit, but at least two studies I'm aware of have shown that the "runaway juries" and "frivolous lawsuits" campaigns have reduced the willingness of juries to fully award economic damages. However, I'd like to once more state that to the best of my knowledge, I've never claimed that tort reform will cap economic damages. If you've seen a post where I have, please let me know and I'll certainly correct it.
4. "The difference here is that I gamble on the chance of death or injury when I do 70. That has nothing to do with the monetary value of my life. "
It has EVERYTHING to do with the monetary value you place on your life. If you valued your life at a trillion dollars, you wouldn't drive 70, because the benefit of driving 70 would be outweighed by the increased risk of death from the increased speed.
Everything I do in life is a risk: I could fall down the stairs, drown in the bathtub, be hit by a bus, etc. But if I died, and God gave me an opportunity to undo my death in exchange for every penny I have, I'd gladly do it. Or in a more realistic example, there's no dollar amount I wouldn't give someone holding me hostage. I think most people feel the same way.
If life is immeasurably valuable, then how would you propose damages to be established?
By letting juries decide on a case-by-case basis. I'll spare you the standard rhetoric about noneconomic damage caps being unfair to women, minorities, students, etc. Instead, I'll ask you what you think a fair cap is, and why?
5. The example of the horse is fascinating. But why stop at horses? If I set fire to an office building and do $200 million dollars worth of economic damages, I'd be liable for $200 million dollars. Is it immoral to say that a person's life is worth less than an office building? If so, does that mean that there should be a floor of $200 million for any death caused, because it would be immoral to value a person's life less than an office building? You make a nice rhetorical trick, but the horse isn't being valued as a horse, it's being valued as an economic asset in the litigation you mention.
My rhetorical trick is no worse than your efforts to force me into arguing coffee is unreasonably dangerous. ;)
Should noneconomic damages have a floor of $200 million? No - that would bankrupt society in a hurry. But $250k is a joke. Again, what cap would you suggest?
6. "None of the casinos ever passed the savings onto their guests in the form of lower prices or increased payout frequencies."
Again, you misunderstand how prices are set. Prices are set by supply and demand. If costs go down, insurers cannot make unusually high profits, because other insurers will want their business, and compete the high prices down. Can I guess that you haven't had Econ 101 yet?
Yes, I've been through Econ 101 and 102. But basic principles of supply and demand don't apply to the insurance industry as they do to the rest of the world. Have you read "Premium Deceit" by J. Robert Hunter?
If construction costs go down, then more casinos will be built, and the casinos will compete for the pool of customers with lower prices or increased payout frequencies. So there is a relationship. It won't be direct, but it will be there. I've been to Las Vegas a dozen times, and only had to pay for a room once.
My argument is that businesses do not lower their prices as an automatic response to a cost savings. They lower their prices if it will benefit them financially. I'll again bring up "Premium Deceit," as it makes a strong case for the argument that insurers won't lower premiums in response to tort reform.
"Such tort reform supporters as Sherman Joyce, Victor Schwartz, and Donald Zuk, have all publically stated in one way or another that tort reform will not lower insurance premiums."
This is absolutely false, and was refuted on pointoflaw. http://energycommerce.house.gov/107/hearings/07172002Hearing648/Schwartz1122.htm
I'm going to the library this weekend and see if I can track down Schwartz' and Joyce's purported quotes. If they don't exist, or are used in an improper context, I'll thank you for pointing that out to me.
However, GE Medical Protective filed for a 19 % rate increase in Texas after the 2003 tort reforms, stating that "Capping non-economic damages will show loss savings of 1%." Are they lying?
Hi Ted, glad to see you've found my site. I've got a really busy day today, so I don't have time to give your comments the response they deserve. But until I do - Friday, probably - I've got a couple of quick questions I'd love you to answer.
1: You repeatedly state that McDonald's wasn't at fault in Stella's case. But the jury found McDonald's to be 80% at fault. To come to that decision, they sat through a seven or eight day trial and considered reams of evidence. Were you present during the entirety of the trial? If not, why should anyone disregard the jury's liability analysis?
2: With respect to your comments about lawyers driving manufacturers out of business: First, your comment was written as if you're lumping me in with trial lawyers. I'm not, and I'm not connected with any, either. I wasn't sure if you knew that or not.
Second, the majority of that post pointed out the fact that foreign manufacturers don't problems doing business in the U.S. I offered the theory that foreign manufacturers do fine here because their costs back home, labor especially, are cheaper than their American counterparts. Do you disagree? If so, why?
I hope to continue this discussion with you.
Justinian
I'm a big fan of The Sopranos. So much so, I'm tempted to write a script for the show based upon what Noel Lee and the not-very-nice crew at Monster Cable have been up to. The plot would go something like this: Tony Soprano, looking to find a way to earn money that won't draw attention from the Feds, consults with an Intellectual Property lawyer. Together, they hatch a perfectly legal scheme: Tony will trademark the commonly used word "Monster." Then, he'll sue any business that's ever used the word Monster to promote its products. The business owners will have a choice - "license" the use of the word Monster and give Tony a cut of their profits, or be forced out of business due to the cost of lawsuits.
I'm not much of a fiction writer, but I think that the right screenwriter could turn my idea into a great Sopranos episode. All the writer would need to do is contact Noel Lee over at Monster Cable and ask him for the details on how the scam works. After all, he and his goons - er, lawyers - run this scam every day on small business owners.
The whole story is here, at Snowmonsters.com. They're a small business that uses cartoon monsters to teach ski safety to children. Noel and his attorney are trying to strongarm Snowmonsters into giving Monster Cable the rights to their cartoon characters, and then forcing Snowmonsters to pay to license them back. If Snowmonsters refuses, Noel will sue, forcing Snowmonsters out of business because of legal costs.
The choice between giving away your business identity and licensing it back or going out of business due to court costs reminds me of the "either your signature or your brains go on this contract," scene in The Godfather. Right now, Noel has similar actions pending against over 100 entities. They'll either pay him or pay their lawyers to fight him off - either way, they'll pay through the nose.
Of course, the tort reform that's supposed to "protect small businesses," won't protect Snowmonsters. Why? Because if Noel sues Snowmonsters, his suit will be for financial injury, not personal injury. And as I've stated before, tort reformers don't want to restrict the ability to sue for financial injury, because they're often the plaintiffs in those suits. So I ask, if it's a tragedy for a small business to go under because of a personal injury lawsuit, why isn't it also a tragedy for a small business to go under because of a financial injury lawsuit?
What Monster Cable is doing is dispicable - I encourage you to boycott their products, as I have. But more importantly, the next time you hear someone say we need to protect small businesses from frivolous lawsuits, I want you to ask them if they support restricting financial injury lawsuits. If their answer is "no," that means that they want to use tort reform to protect the big guys from the little guys. And perhaps it also means that they value money more than human life.
Not surprisingly, the "McDonald's Coffee Case" is still one of the top searches bringing people here, and lately, it's also been a big comment generator. Here's a couple more points for your consideration.
1: Yes, Stella was negligent in placing the coffee in a place where it could spill in her lap. The jury found her to be 20% at fault, so her verdict was reduced by 20%.
2: The big problem people seem to have with this case is understanding that the punitive damages weren't awarded to Stella for spilling coffee on herself, but against McDonald's for serving a dangerously defective product.
Many times - including in this case - the facts don't matter as much as the principle. The principle here is simple: If you're selling a beverage to someone, you're implying that while it may be hot, it's not dangerously hot. And 190 degrees is dangerously hot. For example:
- A 108 degree bath is too hot for most people.
- Most kitchen faucets don't get above 115 degrees.
- Experts recommend setting your hot water heater at no more than 120 degrees to prevent burns.
- Hair dryers won't go above 140 degrees, because that's enough to burn someone's head.
- Hair curlers rarely top 160 degrees, because that's hot enough to burn someone in one second. And ask any teenage girl how painful a hair curler burn is.
- Many cars have a 180 degree thermostat, and there's no question water from a car radiator is too hot to drink. Stella's coffee was ten degrees hotter than that.
So regardless of whether Stella was clumsy, the point is that she was sold a defective product: McDonald's represented that the coffee was safe to drink, and it wasn't. Their own expert called the coffee "unfit for human consumption."
But I can try to convince you that the coffee was dangerous until I'm blue in the face. Instead, I've got a better idea: Put on a pair of cotton jogging pants, and buckle yourself in the car. Then, dump 190 degree coffee on your crotch and struggle to get your pants off in the moving vehicle. After you're released from the burn ward, repeat with 160 degree coffee, and let me know which is safer.
Today's story about those corrupt doctors made me mad. Actually, it made me livid. Not only at them, but at the inability of plaintiffs' lawyers to stop this crap. So, with apologies to the few (2 or 3, tops) trial lawyers who have taken an interest in my site, here's anletter to the plaintiff's bar:
This is anletter to any lawyer who handles or will handle personal injury cases. I invite comments.
Every day, I read or hear something about frivolous lawsuits, doctors being put out of business, and runaway juries. The forces of tort reform use lies and misinformation to spread fear, uncertainty, and doubt about the civil justice system. Sadly, it’s working; tort reform laws keep getting passed, and it’s looking like it may happen at a Federal level. And I blame you.
I blame you because you’re too arrogant to join a team; you think you should lead, not follow. I blame you because you’re too lazy to fight; it’s easier to sit back and complain. And I blame you because you’re too damned greedy; you won’t contribute money to those who would fight for you. So you’re just as guilty as those who lie to the public.
Why don’t you look at what doctors do to get tort reform enacted? They form groups. They make commercials. They call, they write, they e-mail, and they pester their patients, their neighbors, and their lawmakers. And they get results. People believe the bullshit stories that they tell. People empathize for them over their purported loss of money.
So why aren’t you telling the truth about tort reform? Why aren’t you getting people to empathize over people who lost their loved ones? Are you too busy? No – you make your paralegals do half the work. Are you too poor? No – 33% contingent fees see to that. Are you too greedy? That must be it! Why else wouldn’t you help pay for commercials, direct mail campaigns, letter writing campaigns, and anything else you could think of to counter this menace?
Look at what conservatives do: They have scholarships and even schools devoted to brainwashing students into supporting tort reform. They buy media outlets to spread their shrill rhetoric as if it were the gospel truth. They create bogus “grassroots” groups to convince people that everyone supports tort reform. And they get results, too.
So let’s look at what *I* do. I spend my own money – even though it’s not a tax write-off – and my own limited time working on this website. I’ve spent my own money writing, printing, and handing out newsletters about tort reform. I even found the time to organize a letter writing campaign at my college to try and stop House Bill 4 from passing in Texas. And I get results, too. I get over 200 hits a day at my site. I get e-mails and comments from people all over the country, and without exception, every e-mail I’ve received has been positive. Almost all of them have thanked me for telling them the truth about Stella and the McDonald’s lawsuit. At least I will: I e-mailed the lawyer who handled her case, and he never responded to me. In fact, come to think of it, almost every single lawyer I’ve e-mailed regarding this web site never bothered to respond.
I wasn’t asking them for money, either. I’ve invited lawyers to write an article for my site. I’ve asked for permission to link to their sites – which would help them get clients– and I’ve asked permission to quote their work. Again, no response.
Even the relatively few lawyers’ “front groups” that campaign against tort reform wouldn’t respond, either. I e-mailed several of them offering to VOLUNTEER MY TIME to help in any way I could, and they didn’t respond, either. The kicker is that they claimed to be looking for volunteers!
So I ask, what the hell is wrong with you? Are you stupid? Don’t you see that this is literally the fight of your lives? If you lose this battle, you won’t be able to make money anymore! The contingent fee will be reduced. Referral fees will go away – they’re trying to get rid of it in Texas now! And damage caps will mean that the big cases won’t be attractive anymore; why spend $200k on experts if your best day in court is a $250k payday?
You need to come together and form task forces in every state. You need to hire consulting groups to put commercials on TV. You need to send direct mail to every registered voter in the U.S. You need to hold rallies on college campuses. But most importantly, you need to quit being so god damned greedy, and spend your money to protect your ability to make money in the future.
So what if it’s not tax deductible? Taxes will be the least of your worries if your right to earn a living is legislated out of existence. What will you do then, be a defense lawyer? Well, I’ve got news for you defense lawyers out there – if there are no more lawsuits being filed, you’ll be out of work, too; Your corporate employers don’t keep paying you because they like you, they pay you because they need you. Rest assured that if they no longer need you, you’ll stop getting paid.
I’d love it if some of you would give me your time or even some money to help me fight the fight you should be fighting, but you don’t have to. See, despite my own predilection to arrogance and egotism, I’m willing to join a team and work with someone else. So, if I’m just blind, and there really is a group that truly fights the tort reform scam, please tell me where to join; I don’t have to lead.
This battle can be won, because truth and justice – hell, even the American way – are on our side. But the only way to win it is by doing what is anathema to you – spending your money. Here’s how: Tithe. Take 10% of whatever you make, and use it to fight tort reform. Buy mailing lists of voters and send them letters. And don’t try and solicit clients while doing it. Buy radio ads that tell the truth about tort reform. Last month was the ten-year anniversary of the McDonald’s verdict. How about using that to finally tell the truth about it?
If you don’t get off your collective asses, andyour collective pocket books, then Federal tort reform legislation will pass, and you can forget your aspirations of joining the Million Dollar Advocate club. But the biggest tragedy won’t be your inability to join vanity groups. It will be the fact that catastrophically injured people won’t be able to be compensated for their injuries, and they won’t be able to due to your avarice and apathy.
One of the most common arguments in support of job outsourcing is that companies can't afford to pay American wages and still sell products that can be priced competitively.
The unspoken premise is that it's OK for consumers to buy goods strictly on the basis of price. So why isn't it OK for consumers to buy prescription drugs from foreign countries at lower prices? Shouldn't consumers be able to outsource their purchasing to the same nations that corporations outsource their manufacturing?
Corporate America, or at least the pharmaceutical industry, doesn't think so. They argue that consumers are "safer" buying their prescription drugs from American distributors. Personally, I stop listening when any governmental or corporate entity tells me that whatever it's doing is for my safety. There's no reason that pharmaceuticals couldn't standardize on one global price, other than greed.
Truly, if we're to have a global economy, consumers should be just as free to buy from those who sell the products for the least amount of money as corporations are to have the products built by those who work for the least amount of money.
Taking it one step further, why not repeal all import taxes and tarriffs and let consumers - both individual and corporate - buy from whoever will sell the products at the lowest price? The answer is that to do so would hurt corporate America, and put people out of work. I think the difference here is that it would put white collar workers on the street, as opposed to job outsourcing which just puts blue collar workers on the street.
Looking at this link at Forbes, it's revealed that Maurice Greenberg, the CEO of AIG insurance, has raked in around $140 million dollars in the past five years.
This, despite his letter grade of "C" compared to the performance of other CEO's. OK, so Maurice makes a lot of money and isn't necessarily the best CEO - no problem.
But what is a problem is the fact that he's contradicted himself in a big way.
For those of you who don't know, Greenberg recently called plaintiff's lawyers "terrorists," and likened the need for tort reform to the war on terror. Maurice blames trial lawyers for the raise in insurance premiums across the country.
However, this completely contradicts his former position. In the mid eighties, when the insurance industry was in a similar crisis, most insurance companies blamed trial lawyers, and pushed for tort reform. A notable exception to this was Maurice, who was the CEO of AIG even then.
In the March 31st, 1986 edition of Business Week, Greenberg said that the real problem was that insurance premium cuts in the early eighties were to blame, and if it weren't for these cuts, there wouldn't be "all this hullabaloo" about needing to reform the tort system. I guess Maurice took a lot of ribbing from his fellow insurance execs in the eighties for blaming the insurance industry instead of the plaintiff's bar.
What bothers me even more is that he accuses lawyers of being similar to terrorists, and then has the audacity to say this:
"When you destroy something you have to rebuild it, and when you rebuild it, you have to insure it. After the (first Gulf) war we benefited from a lot of reconstruction activities, and my guess is we will this time".
So, it's OK for AIG to "benefit" from a war on terrorism, but it's not OK for lawyers to bring suits against the big corporations AIG insures?
As you may have guessed, I'm opposed to the oppressive lawsuits the RIAA has been filing against such "criminals" as 12-year-old girls. The RIAA claims that services such as Napster and Kazaa have been lowering music sales. I'll rebut this in two ways:
1st: I recently came into some money, and in a two-week period, I spent nearly $200.00 on CD's. The point here is that the sales of music are dependent upon disposable income, and a fortiori, on the state of the economy in general. When people have money, they buy luxury items like CD's. When people don't have money, they don't buy them.
2nd: Harvard just released a study which shows that file sharing isn't killing music sales. Here are a few quotes:
"Big record labels have seen their sales slide precipitously in the past several years, and have blamed the falling revenue in large part on rampant free music downloads online. Others have pointed to additional factors, such as lower household spending during the recession, and increased competition from other entertainment forms such as DVDs and video games, each of which have grown over the same time period." (Emphasis added.)
As important as the quote above is, my favorite is this one:
"While downloads occur on a vast scale, most users are likely individuals who would not have bought the album even in the absence of file sharing." (Emphasis added.)
This is the point I've been yelling about for years. When I hear one song on the radio, I'm not likely to rush out and buy an entire CD to discover that, lo and behold, the rest of the CD is garbage. I'm not alone, according to Harvard's study. The problem here is that record labels don't like to release singles of popular songs, and when they do, the singles are often seven to ten dollars; why not spend a few dollars more and get the whole CD?
Here's another good quote:
"Moreover, their data seemed to show that downloads could even have a slight positive effect on the sales of the top albums, the researchers said."
This is very true in my case. I've downloaded many songs by artists I've never heard of, liked them, and then spent money buying their CD's. The lesson to be learned is that when people can listen to music for free, they're more likely to go outside their comfort zone and discover artists that they like.
When I was younger, I used to go to Blockbuster Music all the time. You could take any CD in the store up to a listening station and try it out. I listened to hundreds of CD's I had never heard of, and bought probably 10% of the CD's I listened to. By being able to try it before I bought it, I was willing to take the risk of an unknown artist, or lesser-known CD from a popular artist. Of course, Blockbuster Music closed. I believe it ran into pressure from the record labels, who for some reason, didn't want consumers to be able to hear a whole CD before they committed to purchasing it.
With today's MP3 technology, a reiteration of Blockbuster Music couldback up and not have the hassle of having to returnCD's to the shelves: hard drives are cheap enough that each store could have a music server with a terabyte of drive space, which would be enough to store roughly 250,000 songs in MP3 format at 128k. Going to WMA or a lower quality MP3 could mean each store could have 500,000 songs on the network. With a nice touchscreen interface, and a music recommendation system similar to that of Amazon.com, people could browse through hundreds of CD's and make immediate purchases of music they like.
Of course, this short-circuit's the industry's model of signing new artists into oppressive contracts, hyping the hell out of that new artist, and manufacturing mega-stars that generate enormous profits for everyone involved except the actual artist. The industry certainly wouldn't want people to buy from artists that receive larger royalties, or worse yet, the dreaded indie labels.
My prediction is that the record labels will begin to heavily push either Super Audio CD's or DVD audio discs very heavily in an attempt to eliminate the standard compact disc, since SACD's and DVD audio discs have copy protection that CD's can't touch, and laws prevent manufacturers from developing devices or software that circumvents those protections.
I'm working on a piece about medical malpractice that I think will be very informative, and I'd like to hear from some doctors to get some feedback on the following issues:
1: Why don't doctors lobby for caps on insurance premiums, instead of caps on damages to victims?
2: Why is there a "wall of silence" in the medical industry that means most doctors won't testify against another doctor, no matter how obvious or egregious the malpractice?
3: Would you, as a doctor, file a malpractice suit against another doctor if you believed malpractice was committed?
4: What changes, besides caps on damages, do you believe would benefit the medical malpractice system as it is today?
5: For those doctors who have been sued for malpractice, what was your experience like?
Any responses will be confidential, unless you give me permission to publish your name. Please e-mail me at justinian at corpreform dotcom.
It's old news now, but the House has passed a bill that bans lawsuits against the food industry for obesity.
Now, I'm about as liberal as they come, and without a doubt I would be the worst juror in the world for a defense lawyer, but I'd be the first juror to find McDonald's "not guilty" in any obesity lawsuit. And apparently, I'm not alone.
For example, Reuters reported that, "There's not a single pending lawsuit now that hasn't been dismissed." This would seem to indicate that there's no need to worry about the food industry being put out of business by obesity lawsuits. This bill is supposedly about "personal responsibility."
However, the Washington Post quotes Connecticut Representative Rosa DeLauro as saying, "Only with this Republican leadership would an effort to promote personal responsibility begin with allowing companies to be irresponsible without accountability." Well said, Rosa.
Tort reformers know that a bill like this is an easy sell to the American public. Very few people - including trial lawyers - think that these lawsuits should succeed. But by demonizing trial lawyers, and by slowly acclimating the public to the concept of protectionary laws, tort reformers will be able to push more tort reform down America's throat.
In The People vs. Larry Flynt, Flynt's character made the statement, "If the First Amendment will protect a scumbag like me, then it'll protect all of you -- 'cause I'm the worst." I would agree that this obesity lawsuit (note that it's a singular lawsuit) is the legal equivalent of a scumbag. But, the Supreme Court allowed Larry Flynt to continue being a scumbag because, inter alia, once you start down the slippery slope of banning speech - no matter how offensive - it becomes easier to ban speech slightly less offensive, and the pattern will continue until we live in a land with as much tolerance as Nazi Germany.
That's why it's a bad idea to grant immunity to any industry. So far, judges have thrown these obesity lawsuits out of court, and there's no reason to think that judges will stop doing so. Even if they do, the average juror won't rule in favor of plaintiffs in such cases. This bill is just the first of many frivolous attacks upon the rights of citizens to hold corporations accountable for misdeeds.
Of course, there's one industry that never seems to be held accountable for its misdeeds; the CNN article I lead off with has this quote:
"The National Restaurant Association said the bill is its top priority this year. While only one such lawsuit has been filed -- a case involving New York children against McDonald's that was dismissed -- the industry said it is facing higher insurance costs because of the potential liability."
Ever notice that trial lawyers "hold industries hostage", "terrorize businesses", and "run rampant" like a "plague of locusts", but that the insurance industry can do no wrong? Let's analyze the obesity lawsuit "epedemic" for a minute: One lawsuit is thrown out of court twice. Insurance companies raise their rates and threaten the livelihood of the restaurant industry, but somehow, lawyers are to blame.
You know, I wonder if Dawn of the Dead will cause some insurance companies to raise their rates for shoping malls because of the potential liability in case zombies invade.
As many of you know, the FDA has decided to ban Ephedra, citing numerous deaths and side effects to this "dangerous drug." Let's take a look at what I believe is the real reason ephedra was banned.
According to this article, sales of ephedra were over 1 billion dollars in 2002, and down to about half a billion in 2003. The decline is attributed to the bad press surrounding the death of Steve Bechler, the Baltimore Orioles baseball player.
The pharmaceutical companies see $1+ billion dollars a year in supplement sales that they feel should go into their pockets, instead. So, they're pushing for legislation that makes it very difficult - if not impossible - for supplement companies to market weight loss products that compete with the safe products pharmaceuticals make, like Fen-Phen.
This article sums it up well.
However, I'd like to talk a little bit more about the comparison they make with Ritalin. Ritalin's real name is methylphenidate. That sounds like a methamphetamine because it basically is. There's a huge problem with kids snorting Ritalin, or selling Ritalin because it gives a high very similar to cocaine. In fact, in studies, cocaine addicts have been unable to tell if they were given Ritalin or coke. Check this article for more info on that.
Ritalin is such a dangerous drug, in fact, that it's a class 2 controlled substance. Check out what the DOJ has to say about it:
"Yes, abusing Ritalin is illegal. Ritalin is a Schedule II substance under the Controlled Substances Act. Schedule II drugs, which include cocaine and methamphetamine, have a high potential for abuse. Abuse of these drugs may lead to severe psychological or physical dependence."
In fact, Sweden banned Ritalin in 1968. Many other countries look unfavorably on Ritalin; 90% of its sales are in the United States.
In this country, it's ok for parents to give a controlled substance very similar to cocaine to their children, but it's not ok for an informed adult to purchase a naturally occuring substance to lose weight. The difference between the two drugs, apparently, is that the pharmaecutical companies have more money than the supplement companies.
It seems you can sell anything to the American public if you do it under the guise of SAFETY. I believe Benjamin Franklin said it best, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
I guess the overweight can just look forward to another wonder drug from a major pharmaceutical. Maybe the new drug will erode your liver, chew up your heart valves, cause impotence, and lead to depression. Then, people who took that drug will need to spend more money on prozac, viagra, and anti-rejection drugs for their transplants. Wouldn't that make the pharmaceuticals happy?
Well, it's December 24th. Christmas is just hours away. And after watching television, listening to the radio, and reading my e-mails, I believe figured out the new meaning of Christmas: BUY! BUY! BUY! BUY!
Over the past year, I've become a bit more cynical about the world, and politics. I've come to believe that Deep Throat was right when he said, "Follow the money." After all, money seems to change everything. For example, we've had a Medicare bill pushed down our throats that does little more than put around $300 billion in profits in the pharmaceutical industry's pockets. I'm forced to wonder how many of those billions will go towards lobbying for immunity from liability when drugs cause heart problems, diabetes, impotence, death, and the many other side effects that some people have had to live with.
I've gotten to see Proposition 12 pass in Texas, which allows the Texas State Legislature to put caps on the amount of money an injured person can recover against any entity for any violation. Medical malpractice lawsuits are the first to feel the pain. This is because it's an easy sell: People like doctors, and people don't like lawyers. People especially don't like the thought of lawyers suing doctors so often that doctors are forced to leave the state. In actuality, of course, this isn't happening - but it sounds good. So, capping medical malpractice lawsuits is the beginning of the slippery slope to cap lawsuits against all of the major lobbying groups. My prediction is that bad faith lawsuits against insurance companies will be the next area to see legislative caps. This will probably be followed by capping lawsuits against the transportation industry; trucking companies, airlines, etc. Perhaps they'll trot out the disgusting example of one prominent Houston attorney who flew in his private jet to the scene of a plane crash and proceeded to try and sign up survivors and the families of those who were killed. Now, I believe people have a right to representation and all, but that lawyer did go over the line. But, the system works - he was disciplined by the state bar.
I've become more cynical about human nature not because I think the past few years have shown a decay in our moral fiber, but because the last few thousand years have. I'm a big fan of world history, and if there's one pattern I see repeating over and over again, it's this: A group comes into power. That group tries to enrich themselves and all of their friends, while simultaneously preventing a rival group from attaining any share of power, and any significant amount of wealth. Money, it seems, makes the world go around.
Casear was one of the first strategists to use a divide and conquer technique against his enemies. Modern day Republicans have picked up on this and have used it well. Notice how almost every rabid single-issue voter group is dominated by Republicans? The pro-life group is a good example: it seems patently obvious to me that many of the Republican candidates that prattle on about the evils of abortion don't really care about the cause, but care only about the votes that come with opposing it.
What amazes me is the sharp contrast between the organizational abilities of the Republicans compared with the Democrats. Republicans have aligned with, and gotten into the White House, a man who was probably not the most intellectually gifted Republican candidate. But, they got behind him and refrained from infighting that hurt the whole group. Democrats, on the other hand, fight with each other instead of taking on the Repuplicans. Take that as a Howard Dean reference if you want. For the record, I think John Edwards is a better candidate. And for the record, I think the sickness in American politics won't be healed until there's a viable third-party.
In closing, I'll leave you with a quote from Cicero. Cicero said, "Nihil tam munitum quod non expugnari pecunia possit."
That's Latin for, "No fortification is such that it cannot be subdued with money."
First of all, I'm not a vegetarian. I'm practically a carnivore; I eat lots of red meat and very few vegetables. That said, check out The Meatrix at PETA's web site.
I love the agricorp machine. It's relevant to almost any industry, actually. Think about the pigs in pens in terms of workers in cubicles. And think about the small farms in terms of "mom and pop shops."
Recently, I've spent some time in my History class learning about the slave system in America, and I actually see a lot of parallels between it and modern-day America. I wasn't aware, for example, that relatively few southern farmers owned slaves. In fact, the majority of southern farmers were little more than subsistence farmers that were looked down upon by the plantation aristocracy. As it turns out, few families owned large numbers of slaves: Only 1,733 families owned 100 or more slaves. It was these families that benefitted most from the slave system.
However, those subsistence farmers - often called White Trash by the plantation aristocracy - were those that most fiercely defended the slave system; many died for it in the Civil War. Why would those poor farmers give their lives to defend a system that kept them poor and only served to further enrichen the wealthy? Perhaps for the same reasons that many poor Americans today support a system that protects the rich at the expense of the poor: Dreams.
Southern subsistence farmers dreamt of one day owning their own slaves, having their own plantation mansion, and of having the wealth that accompanies the former. Those dreams kept subsistence farmers working in the fields picking cotton or tobacco. Those dreams gave subsistence farmers hope of advancing beyond their meager status. And those dreams meant that subsistence farmers would fully support the slave system - the same slave system that helped to keep them poor. I see many parallels with the system today.
For example, I've heard minimum wage earners decry tax increases on the top 1% of salary earners. I've heard those at the poverty level argue passionately against luxury taxes on jewely. And I've listened to those who will inherit nothing more than a stack of bills protest the unfairness of the inheritance tax. Many of these working poor - I call them wage slaves - will never have to suffer a luxury tax on a $10,000 diamond ring. Fewer still will have to deal with estate taxes, and perhaps only 1 in 100,000 will ever be in the top 1% of wage earners.
Today's wage slaves aren't much different from southern subsistence farmers: Both aspired to become wealthy, both support a system that oppresses them, and few of either would ever reap the benefits of the systems they support.
The similarities between the generations don't stop there - let's look at the other end of the spectrum. Yesterday's plantation aristocrats have been replaced by today's corporate elite. Both were supported by what amounts to slave labor; the cost to feed, clothe, and house a slave 24-hours a day isn't that much less than paying minimum wage 8 hours a day.
Even more pertinent is the attitude of the corporate elite today: They're snobs. They look down upon "the great unwashed". Many of them feel that because they have money, they are better than those they employ. Is there any doubt, that Tyco CEO Dennis Kozlowski felt thought himself better than his employees? The video clip of his wife's multimillion-dollar birthday party showed a man who acted as though he was entitled to the funds he embezzled.
Dennis Kozlowski, to his credit, worked his way to the top. But what of those who were born into wealth? One could look at the video antics (not those antics) of heiress Paris Hilton on The Simple Life. She makes no attempt to hide the fact that she thinks she's superior to the average Americans who appear as props in her show.
The point is that the very wealthy today look down upon the average American in much the same way that plantation aristocrats looked down upon subsistence farmers of the day.
Thomas Hobbes said that, "[M]en have no pleasure (but on the contrary a great deal of grief) in keeping company where there is no power able to overawe them all."
In America, we have no royalty to overawe us. Instead, we look to anecdotes of the lifestyles of the richest people in America to overawe us. And sadly, the average American fights to protect a system that will protect the rich, at the expense of the average citizen. Hobbes might say that's the natural order of things, but I'm an optimist and will argue that if the average American wouldhis or her eyes, he or she would see the inequity in the system and would fight to reform the system to better everyone, and not just the rich.
Then again, the Civil War was started by the South to protect the inequities of their system, not to reform it.
From time to time, I'll see an article pop up about jobs being exported overseas, or the importation of workers on work visas. When I see these articles, I'm usually left with the same thought: What happened to the social contract?
Thousands of Americans have fought and died to keep the democratic ideals of America alive and well, such as the private ownership of property, and the right to free speech. In America, you can be like George Soros and speak out against the government, and even try and use your money to unseat the powers that be. In stark contrast is Russia, where Russia's richest man, Mikhail B. Khodorkovsky has been put in jail and had his stocks seized for daring to challenge the Russian President. In America, no matter how successful a company, the executives need not fear that the government will try and seize control of the company.
Thanks to the democratic principles of America, this country is the richest nation in the world, and will continue to be for the forseeable future.
But the corporations that have been enriched by America aren't fulfilling their end of the social contract. Rather than sharing the wealth with Americans, they bring foreigners in.
I worked at Microsoft for a while, and saw a lot of computer programmers being imported from India on work visas. It was no secret why: Microsoft paid them, on average, 30% less than their American counterparts. It seems shameful to me that a company like Microsoft would turn its back on skilled American programmers and bring in foreigners for no other reason than to save money.
Of course, even more insidious than needlessly importing foreign workers is exporting jobs for no reason other than to save money. The U.S. Department of Labor and Statistics has estimated that over 450,000 Americans lost their jobs due to NAFTA alone.
What follows is an excerpt from callcenterinindia.blogspot.com:
One company, Gartner, said information technology companies will move one in 10 jobs offshore by the end of 2004. Forrester Research said 3.3 million tech and service jobs will leave the country by 2015.
U.S. banks, brokerage firms, insurance companies and mutual funds will send 500,000 jobs, or 8 percent of their workforce, offshore within the next five years, according to consulting firm A.T Kearney.
Between banks and tech companies, nearly 4 million jobs will be sent overseas. Why? This next excerpt from the same blog says it all:
"Yet Indian employees make $2,800 to $8,000 a year, compared with $30,000 to $45,000 for comparable American workers."
That means that just between banks and tech companies, $152 billion dollars in salaries will leave the country. How's that for corporate loyalty to the country?
Yesterday, the site had its first public comment, which was from a gentleman who disapproved of my post about Trial Lawyers, Inc. For those who don't know, Trial Lawyers, Inc. is a "study" that basically attempts to lump all lawyers into one giant organization that is reputed to be destroying America, the justice system, etc. I'll tell you who made the "study" possible, and let you draw your own conclusions.
The "study" was authored by the Manhattan Institute, a conservative think-tank. Well, at least it's funded by conservatives. Let's take a look at who pays the bills for the Manhattan Institute.
Richard Mellon Scaife and his foundations: This article at CNN profiles Richard Scaife. Richard inherited his millions from the Mellon industrial foundation. He owns some interest in newspapers and other media outlets. Why? The CNN article has this to say, "Burton Hersh, author of "The Mellon Family," said, "Even as a child, he always saw the correlation between the media and the reputation of politicians. That's certainly been a sub-theme of his life." This makes sense, because the article also concludes with this statement: "[I]t is a fact this billionaire has spent millions in tax-free money attacking the current occupants of the White House." (Clinton)
According to this link at Media Transparency, Scaife and his foundations have given $565,000.00 to the Manhattan Institute since 2000 alone.
The Lynde and Harry Bradley Foundation: Another large contributor to the Manhattan Institute is the Bradley foundations. Media Transparency has some nice information about this group here. In 1968, Allen-Bradley (where the money came from) had over 7,000 employees, but only 32 black or Hispanic workers. The federal government forced them to integrate. It's currently run by a former executive of the John Olin foundation, another conservative group profiled in the same Media Transparency article, and summarized below.
Remember the book The Bell Curve? This group helped fund it, and after it was published, increased the author's grant to $136,000. For those who forget, The Bell Curve espoused that poverty was caused by genetic inferiorty. This article, also at Media Transparency, details the "racist agenda" of the organization and its efforts to eliminate affirmative action. It's a good read.
Since 2000, this foundation has given $585,000 to the Manhattan Institute.
The John M. Olin Foundation: This foundation is financed by chemical and munitions money. Last I checked, the chemical industry pushes heavily for tort reform. There is a nice piece about the foundation here at the People For The American Way, and it has this quote: "Explaining his efforts to convince corporations to halt grants to university programs deemed "liberal," Olin president William Simon argues that many businesses are "financing their own destruction." "Why should businessmen," Simon asks, "be financing left-wing intellectuals and institutions which espouse the exact opposite of what they believe in?"
While the previous quote is fairly telling, the best quote in the article could be this one: "The report finds a significant and long-standing movement to reshape the American legal system on the part of "a powerful coalition of business groups and ideologically compatible foundations [who are] engaged in a multi-faceted, comprehensive and integrated campaign to elevate corporate profits and private wealth over social justice and individual rights." Further, "[c]onservative foundations, particularly Olin, Sarah Scaife, Lynde and Harry Bradley, and Smith Richardson, are the effort's philosophical leaders."
UCLA turned down money from this foundation because they felt the Olin foundation was, "taking advantage of students' financial need to indoctrinate them with a particular ideology." It certainly doesn't look good when a university turns down grant money because of the beliefs of an organization.
The Manhattan Institute, however, has no problem with taking Olin money. Since 2000, they've received $1,001,000 in grants from the Olin Foundation. Have the authors of Trial Lawyers, Inc. been indoctrinated with the ideology of the Olin group?
So, the Manhattan Institute has received millions of dollars in funding from right-wing, racist, pro-business, anti-consumer "think tanks", and they use that money to produce a "study" which blames trial lawyers for the decline of America. Draw your own conclusions.
I've had a horrible flu this past week, but one upside of that was that I was able to lie around and watch part of the marathon fillibuster on C-SPAN2. I found quite a few senators that I agreed with, even more I disagreed with, and made some observations. I was rather shocked with a comment that Orrin Hatch made about fillibustering.
Orrin was prattling on about how Republicans didn't fillibuster Clinton's judicial nominees, even though one of them was a labor lawyer. I laughed out loud at how obviously pro-corporate interests that Hatch and his fellow Republicans are. I mean, to state that it would have been reasonable to fillibuster a judicial nominee simply because that nominee represented the people instead of corporate interests?
I guess I shouldn't be surprised. After all, Ol' Orrin thinks that it's ok if big companies destroy your personal property to protect their copyrights.
I'll never understand how Republicans manage to court the little guys and get their votes. I mean, why would any individual want to vote for people or parties who believe that big business has the right to remotely destroy your property if you infringe on some copyrights?
How can the people get behind a party that refuses to raise minimum wage, and believes that they would be justified in fillibustering a judicial nominee simply for being a labor lawyer?
The Republican party will never enact meaningful laws to reform corporate misbehavior. Instead, they'll enact laws that will eviscerate the rights of the public at large. I just wish I knew why the public is in love with the Republicans.
Madison and Lincoln both saw the future. Scary, isn't it?
“I see in the future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of war, corporations have been enthroned and an era of corruption in high places will follow. The money power will endeavor to prolong its reign by working on the prejudices of the people until all the wealth is aggregated into a few hands and the republic is destroyed.” - Abraham Lincoln
“We are free today, substantially, but the day will come when our republic will come to impossibility because its wealth will be concentrated in the hands of a few. When that day comes, then we must rely upon the wisdom of the best elements in the country to readjust the laws of the nation to the changed conditions.” - James Madison
One of the complaints tort reformers have about our justice system is that it discourages "personal responsibility"; that if individuals took responsibility for their own actions, fewer lawsuits would be filed. They even cite tobacco lawsuits, arguing that individuals have known for years that smoking causes cancer, so they should take personal responsibility for their illnesses, and not sue.
By their logic, any manufacturer should be able to sell any product it wishes, merely by placing a warning label on the product. We could abolish the FDA and stop regulating the pharmaceuticals, because as long as they warn people that the drug has health risks, the doctrine of personal responsibility should preclude lawsuits. Phen-fen could come back on the market, for example. The golden oldie thalidomyde could also make a comeback.
Why stop with prescription drugs? Cars wouldn't need any safety equipment anymore, because a great big warning sticker on the door could inform people that misuse of an automobile could result in injury or death. Who needs seatbelts? The manufacturers could sell them as an add-on, and when people die, they should take "personal responsibility" for not ordering seat belts.
I have a different take on personal responsibility. I think that if corporate executives took personal responsibility, there would be far fewer lawsuits. For example, when someone slips and falls in a store, if the store manager took personal responsibility and offered to pay for their medical bills, the person probably wouldn't sue.
Or if tobacco executives took personal responsibility for their products, they might pull them off the market because, well, they kill their consumers.
Maybe an engineer at Firestone could have taken personal responsibility when he realized some of their tires were unsafe. He could have gone up the corporate ladder, and when (not if) that failed, he could have gone to the media. Of course, he'd be sued for divulging trade secrets, but he might have saved lives.
The truth is that for tort reformers "personal responsibility" means not suing big companies when their products cause injuries, even if those companies knew their products were defective.
Maybe more products should come with a warning label that says something like, "Warning: This product was manufactured by a corporation whose only concern is their profit margin. If you are killed or injured by this product, the manufacturer will say its your own fault, and will hide or destroy internal documents that prove the manufacturer was aware of the defect that injured you."
You know, I thought that two organizations in particular might have a common interest in defeating Tort Reform: Mothers Against Drunk Driving, and Students Against Drunk Driving. I found some strange facts:
1: MADD states that they will neither oppose nor support tort reform legislation. Tort reform would prevent the victims of drunk drivers from recovering meaningful jury awards if they are severely injured, or killed. However, I guess that MADD needs corporate money to survive, so they don't want to piss off the companies who donate, like Allstate, who donated $1 million to the California division of MADD. Funny - shortly after that donation, the California arm of MADD supported legislation that would have prevented punitive damages against drunk drivers.
2: I don't think SADD would really support the cause, either. After all, it seems that they have former liquor company executives on their board of directors. One of them, Donald B. Shea, is a former member of the directors for the American Tort Reform Association.
It's a sad state of affairs when drunk driving organizations are funded by those opposed to laws that hold drunk drivers accountable.
Medical Malpractice insurance rates are the hot button in tort reform today. Doctors complain loudly and vehemently that they are being forced out of practice by high premiums. We're told that unless we do something to curb the wave of "frivolous lawsuits" against doctors, we won't have anymore doctors to go to. Doctors lobby very strongly to limit their ability to be sued.
It seems to me that attempting to lower malpractice insurance rates by capping damages of the catastrophically injured is treating the symptoms, and not the illness. The illness is high insurance rates; why not place a cap on malpractice premium rates?
Doctors who have no history of malpractice claims could have a cap in place of 1% or 2% of their gross income, with a maximum dollar cap of $10,000.00 per month. Doctors who have had malpractice claims could pay a higher percentage.
It puzzles me why doctors, an educated group of people, think that the cure for their high premiums is to try and cap damages on lawsuits. After all, premium rates aren't based solely on lawsuits. Malpractice premiums, like auto insurance premiums, take into consideration the locale of the doctor. Now, is a doctor in Duluth less likely to commit malpractice than a doctor in Miami? While the Miami doctor may see more patients than the Duluth doctor, he or she may not. After all, in some small towns, doctors are kept far busier than their big city counterparts because there aren't as many doctors per capita. Yet, in general, a big city practitioner will pay more in premiums than a small town practitioner. Why?
Because insurance companies charge what the market will bear. But instead of attacking the predatory pricing scheme of the insurance cartel, doctors get whipped into an anti-lawyer, anti-patient frenzy and become convinced that every patient is itching to file a malpractice lawsuit. So the doctors focus their efforts on getting laws passed that make it harder and less attractive to file malpractice lawsuits.
Wouldn't doctors be better served by lobbying for strict regulation of their premiums? Capping damages may or may not lower premiums - most insurance companies admit it will not lower premiums - but a regulatory board that prevents doctors from being gouged certainly would lower premiums.
Some may argue that it would be unconstitutional to tell a business what they may or may not charge for their product. If this is so, then wouldn't it also be unconstitutional to tell a judge or jury how much they may award a plaintiff in a lawsuit?
The truth is that until insurance reform is put into place, doctors will always be subject to the capricious whims of malpractice insurance carriers.
In 2003, the Texas Legislature passed House Bill 4, a bill that protects medical providers, including manufacturers of medical devices, by capping the amount of noneconomic damages in personal injury lawsuits at $250,000.00. This cap was ostensibly put into place to protect medical providers from “runaway juries” that award tens of millions of dollars to catastrophically injured patients. However, as it turns out, this bill doesn’t protect medical providers from one group of plaintiffs that receive jury verdicts into the hundreds of millions of dollars: their competitors.
In 2002, Igen International, Inc. was awarded $505 million dollars from Roche Diagnostics for patent violations, with $404 million dollars in punitive damages . While this case took place in Maryland, it could have taken place in Texas, and if it did, neither House Bill 4 nor its progeny, Proposition 12, would prevent Igen from collecting nearly half a billion dollars in punitive damages.
The irony becomes apparent with this hypothetical scenario: Assume arguendo that Roche used Igen’s patents to create a medical device that causes a patient to die on the operating table. Under numerous proposed tort reform bills across the country, Roche would be liable for a maximum of $250,000.00 to the family of the deceased. Yet, Roche was liable for nearly half-a-billion dollars to Igen for patent infringements – an award over 1,600 times as large as the $250,000.00 cap on noneconomic damages existing in Texas for personal injury lawsuits. Surprisingly, the large amount of punitive damages in the Igen case isn’t a rarity: In 1997, the Rand Group found that punitive damages are awarded four times as often in financial injury cases than in personal injury cases.
It’s not hard to imagine the same executives at Igen, who praised the $404 million dollar award, criticizing “runaway juries” if they were ordered to pay even $4 million dollars to someone paralyzed by their products.
One of the founding principles of our justice system is the belief that human life is infinitely more valuable than human property; it’s why you can’t simply shoot someone that’s trying to steal your car. This principle is subverted by any tort reform bill that holds companies accountable for hundreds of millions of dollars for theft of intellectual property, but only holds those same companies accountable for hundreds of thousands of dollars if their products disable or kill a consumer.
So why, then, don’t big businesses want tort reform that insulates them from enormous jury verdicts in financial injury cases? We’ll use another hypothetical scenario with Igen and Roche. $101 million of the Igen verdict was for economic damages – the actual monetary loss of Igen. Such an award creates a reasonable assumption that Roche must have made close to $100 million dollars from Igen’s patents. So, what would the deterrent be of a maximum award of $250,000.00 to a company that made $100 million dollars? Insignificant.
The question then becomes this: If businesses need multimillion dollar jury verdicts to deter their competitors from stealing their intellectual property, why don’t consumers need multimillion dollar jury verdicts to deter businesses from knowingly selling harmful, or even fatal products?
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