TORT REFORM

A movement known as "tort reform" has been underway in America for a long time now. A "tort" is a legal term referring to (and don't quote me) a wrong committed against somebody that isn't a criminal act but is still nasty enough to warrant compensation.

As an example, suppose you own a convenience store and a customer accidentally drops a bottle of milk. Your employee is a little slow cleaning it up, and another customer slips on the milk and breaks his leg. You haven't broken any laws, but the customer who broke his leg sues you because, if you hadn't been negligent, he wouldn't have fallen and gotten hurt.

That's a tort.

One huge area of the world of torts is product liability, where people who get hurt claim that it was the fault of products they were using. Famous examples of this include suits against Audi (sudden acceleration causing accidents), breast implant manufacturers (leaking implants causing joint disease), tobacco companies (hiding the health risks of smoking), and Ford (tire failure on Explorers, exploding gas tanks in Pintos).

There are several kinds of damages that can be awarded in a tort case.

Compensatory damages are just what they sound like, compensation for actual costs incurred or, if those are not directly known, an estimate can be made based on various formulae. In the convenience store example, compensatory damages might include the cost of doctor bills to set the broken leg.

There is also the matter of how much money the victim loses by not being able to work while his leg is healing ("consequential damages").

If somebody dies, damages based on such things as his expected life earnings might be computed so his family is compensated for his loss. It can get pretty complicated and, over time, the legal system has evolved some standards for computing the value of a life.

Now, if I break your leg and you have $500 in doctor bills and I pay them (compensatory damages), nobody would think it's fair that you suffered the pain and trauma of a broken limb and only had your bills covered. So there is also compensation for "pain and suffering." In this area there are few good standards, and jury awards or settlements tend to range all over the map.

Then there is the matter of punitive damages. "Punitive" derives from "punishment" and is just that: it's kind of like a fine against the wrongdoer for having done wrong in the first place.

Punitive damages make sense: If a company that makes hair dryers has been sued repeatedly by the families of people who have been electrocuted by faulty switches, and they continue to make defective hair dryers knowing the danger, they deserve to get punished.

The only practical way to punish a corporation is by making it cough up money. Unfortunate, but true.

And when a company gets socked with punitive damages, the money doesn't go into the US Treasury. It goes into the pocket of the plaintiff.

Well, two-third of it does, anyway. The other one-third goes to the plaintiff's lawyer.

The tort reform movement is an attempt to limit the amount of damages awarded to plaintiffs in these kinds of suits, specifically punitive damages and compensation for pain and suffering. There are people who believe that awards for these kinds of damages have spiraled completely out of control, largely owing to the greed of attorneys who specialize in personal injury cases, and that they are destroying corporate America.

There are other people who believe that the system is working just fine, and that any attempts to limit awards would leave corporate America free to maim and kill citizens by the millions with impunity.

The group that wants to limit damages because personal injury attorneys are destroying corporate America is corporate America.

The group that believes that personal injury attorneys going after big awards are what is protecting the citizenry against corporate America is personal injury attorneys.

(I mention the foregoing because, like just about every cause that exists in America, the people behind these particular causes are motivated primarily by their own self-interest. There is nothing inherently wrong with this, but people on either side of the issue often — and, I'm certain, quite inadvertently — fail to identify themselves clearly when placing ads or otherwise pushing their points of view.)

There are excellent points made by people on both sides of this long-running controversy. Each side claims that the other side has escalated the bullshit quotient (BQ) to somewhere above the stratosphere.

Tort reformers insist that the BQ in courtrooms has made the whole process irrational.

Personal injury attorneys believe that tort reformers have pushed the envelope on the BQ by deliberately misleading the public about the facts and nature of notorious tort cases.

As is almost always the case, both sides are dead right. In other words, both sides are equally full of bullshit, and both sides have valid points.  (I say "almost always the case" because there are exceptions. In the matter of smoking, the tobacco industry is completely full of bullshit.)

Consider some famous examples:

Number one on the list is the case of Stella Liebeck, an elderly woman who was severely burned trying to open a cup of McDonald's coffee while holding it between her legs. She sued McDonald's and won.

Then there was the guy driving a Pinto who hit a horse that had suddenly bolted onto the road. The horse flew into the air and landed on the roof of the car, crushing it and killing the guy's wife. He sued Ford and won.

A self-proclaimed psychic went in for radiation treatment for a medical condition but the technician left the machine on too long. She claimed it robbed her of her psychic abilities and she won.

In all of these cases, the award amounts were in the millions. As we can clearly see, things have indeed spiraled completely out of control. Not only should these absurd cases never have been brought, but the amounts ultimately awarded betray the insanity of the whole process.

This is what tort reformers have been trying to tell us for years, and how can you argue?

Except…

These were all jury awards. How did it come about that panels of ordinary citizens could be so stupid and meek as to let themselves be led around by the nose by venal personal injury attorneys and get tricked into these nonsensical outcomes?

Now, I'm not necessarily a great fan of the common sense of the common man. After all, nearly two-thirds of Americans believe in astrology which, to my way of thinking, pretty much puts the zonk on any basis for an overall claim of faith in the ability of the masses to think critically.

On the other hand, I don't think that people are stupid, and especially so when sitting in a jury box. I think serving on a jury elevates people in ways few other aspects of modern life can, and that jurors generally pay attention, take their responsibilities very seriously, usually rise to the occasion and usually do the right thing.

So how was it possible that jurors in the afore-cited cases could be so damned dumb?

Well, maybe it isn't possible. And maybe they weren't so dumb. As with every cause in America (and notice I didn't say "almost" this time), it pays to look beneath the blatant lobbying and try to find some — dare I say it? — facts.

The particular McDonald's from which Ms. Liebeck purchased her ill-fated coffee was one that catered to a lot of long-haul truckers. These guys like their coffee served extra hot so that it stays warm longer as they drive.  To accommodate them, McDonald's cranked up the burners on their coffee urns. The result was coffee that greatly exceeded the temperature allowable by state regulations.

In fact (remember facts?) they'd been cited over 160 times by state health officials in the three years prior to the incident in question for serving their coffee at dangerously high temperatures, but apparently thought it made more business sense to just pay the fines rather than lose those truck-driving customers.

Now, Stella Liebeck was an idiot for holding a coffee cup between her legs when trying to open it. No argument there. But the fact is that, had McDonald's been in compliance with state regulations and not deliberately ignored the more than 160 citations they'd received, her burns would have been much less severe.

Was it worth $2.9 million? I don't know. Certainly it was more compensation than Ms. Liebeck deserved. On the other hand, there is no question that the McDonald's deserved to be punished. Then again, why should she have been the recipient of the punishment money?

Good questions. But the point is not the size of the award, or who got the dough. The point is that the case doesn't sound quite as absurd as it did when only the tort reformers explained and publicized it and sent it zooming all over the Internet like a virus. There was more to it than that.

So what about the guy driving the Pinto? Well, his lawyer got a horse carcass and some old Pintos, and he dropped the carcass from the same estimated height that the original horse had reached before landing on the car. Crushed the roof every time. So the lawyer did some research — a lot, in fact, including subpoenaing records from Ford — and eventually discovered that the roof of the Pinto had not been built to federal specifications dictating how car roofs were supposed to be built.

Now, you can't blame Ford for a horse jumping out in front of a car. But the fact is that, had that roof been built the way it was supposed to have been built, the plaintiff's wife would still be alive.

How about the psychic? She went in for a treatment that involved a beam of radiation trained on her head. The beam was supposed to be on for 20 seconds, but the technician made a mistake and left in for 20 minutes. Not only was her skin burned but parts of her brain were, too.

But, still…loss of psychic powers?

Of course not. And the fact is that the claim for loss of her psychic powers was thrown out. The claim for the migraine headaches and specific neurological deficits she'd been suffering and would continue to suffer for the rest of her life were upheld, though.

As I said, there are good arguments on both sides of this issue.

But anytime you hear horror stories spun by only one side, it pays to look beneath them a little.

 


from: A Practical Guide for Everyday Living, by Lee Gruenfeld
* © Copyright 1997-2002 by Steeplechase Run, Inc. - All Rights Reserved

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