Justinian Lane

The Politics Behind Tort Reform

Hello, and welcome back after that fifteen-month intermission. I’ve been too busy helping people to blog about the forces that want to prevent me from helping people.

To dip my toe back in the blogging water, I thought I’d give a very brief primer on the politics behind tort reform.

Tort “reform” is of course the effort to (a) make it more difficult to file injury lawsuits, and (b) make it more difficult to collect meaningful amounts of money from injury lawsuits. These efforts benefit large industries to the detriment of the general public. (You know, like most policies these days.)

Republicans are big supporters of tort “reform” for the following reasons:

1: Most Republicans believe that lawsuits are a form of regulation that hampers big business. Without pesky lawsuits, businesses could make more decisions on the basis purely of profitability, without much concern about the safety of their products. For those folks who believe corporate America would always do the right thing regarding safety, I suggest you research the history of asbestos use in America.

2: Most Republicans are supported by industries that are often sued in personal injury lawsuits (doctors, pharmaceuticals, oil, gas, transportation, etc.) or that foot the bill in the lawsuits (insurance companies.)

3: Most trial lawyers are Democrats and give campaign contributions to Democrats.

4: Tort “reform” drastically reduces the amount of money trial lawyers can earn. The less money a trial lawyer earns, the less he or she can give to Democrats.

So here’s how the cycle works: Republicans throw red meat to the base by promising tort “reform” measures. That gets dollars flowing to the Republicans. If the measures pass, it cuts into the amount of money trial lawyers can give to Democrats. So by pushing for tort “reform,” the Republican party simultaneously revs up its base, increases campaign contributions, and defunds the Democrats. If you’re a Republican, you’re an idiot not to support tort “reform.” You’re also not the brightest if you’re a Democrat who supports tort “reform.”

That’s it for today, kids. I have literally over 1,000 blog topics I’ve been saving up in a “To Be Blogged About” folder in my Inbox. I doubt I’ll ever get all the way through it, but I’ll start working on it.

Posted at 6:13 PM, May 20, 2012 in Permalink

Justinian Lane

The value of a human life and damage caps

Even if we go with the Bush-era figure of $6.8 million, you’re far above the often-proposed cap of $250,000 for noneconomic damages.  I’m morally opposed to ANY damage cap because I don’t believe that you can set a flat rate on every human’s life.  But if we’re going to do caps at all, couldn’t they at least be in line with what the feds think a human life is worth?

To protests from business and praise from unions, environmentalists and consumer groups, one agency after another has ratcheted up the price of life, justifying tougher — and more costly — standards.

The Environmental Protection Agency set the value of a life at $9.1 million last year in proposing tighter restrictions on air pollution. The agency used numbers as low as $6.8 million during the George W. Bush administration.

The Food and Drug Administration declared that life was worth $7.9 million last year, up from $5 million in 2008, in proposing warning labels on cigarette packages featuring images of cancer victims.

The Transportation Department has used values of around $6 million to justify recent decisions to impose regulations that the Bush administration had rejected as too expensive, like requiring stronger roofs on cars.

And the numbers may keep climbing. In December, the E.P.A. said it might set the value of preventing cancer deaths 50 percent higher than other deaths, because cancer kills slowly. A report last year financed by the Department of Homeland Security suggested that the value of preventing deaths from terrorism might be 100 percent higher than other deaths.

Source: A Life’s Value May Depend on the Agency, but It’s Rising - NYTimes.com

Posted at 2:58 PM, Feb 17, 2011 in Damage Caps | Permalink

Justinian Lane

Business Litigation vs. Malpractice Litigation–Let’s Get Some Perspective

Which is a greater tragedy: A child dying at the hands of an incompetent doctor, or a toy company ripping off the design of a doll from another toy company?  Brian Wilson discusses how out-of-whack our priorities are regarding “reforming” the tort system:

I couldn’t help but to juxtapose the latest Doll Wars legal skirmish against the latest push in Congress to limit malpractice victims’ recovery to $250,000. So let’s juxtapose, shall we? Never ending billion dollar lawsuits, and $270 million in attorneys fees dedicated to denigrating plastic dolls that carry neat little outfits and may or may not throw F bombs. Meanwhile, if a doctor mistakenly removes a woman’s non-cancerous breast, or a hospital mistakenly overdoses a child and renders her comatose, either’s lifetime of misery is liquidated to $250K. 

Source: The Nicodemo & Wilson Bull’s-Eye Blog

Posted at 4:19 PM, Feb 09, 2011 in Business Culture | Hypocrites of Tort "Reform" | Medical Malpractice | Permalink

Justinian Lane

Great Op-Ed on Malpractice Reform

I liked this one.

Washington lawmakers who advocate for medical malpractice reform assume they know what goes on in doctors’ offices. They say physicians order unnecessary tests because they fear being sued. So-called "defensive medicine" drives up health spending, the argument goes.

They don’t acknowledge many doctors order tests because they’re trying to do a thorough job with patients. They rarely mention too much testing is a result of this country’s "fee for service" system of paying doctors. The more care they provide, the more they bill.

Source: Malpractice reform rests on thin evidence | The Des Moines Register | DesMoinesRegister.com

Posted at 1:15 PM, Feb 08, 2011 in Medical Malpractice | Permalink

Justinian Lane

No Jobs In Ohio After Tort Reform

My Friend and Ohio personal injury attorney Brian Wilson discusses the drop in tort lawsuits in Ohio between 2002 and 2009.  Between those two years, many tort deform laws took effect and were upheld by the Ohio Supreme Court.

Compare these numbers to 2002, shortly before The Ohio Legislature passed the beginning of many of The Chamber’s lobbied for reforms. Notice the HUGE drop in "personal injury" type lawsuits (in bold) in 2009 as compared to the "pre-reform"
numbers in 2002:

Source: The Nicodemo & Wilson Bull’s-Eye Blog: The Chamber, Lawsuits And Jobs: If Only The Truth Mattered…

You’ll have to visit his blog to see the numbers.  The point of his blog post is to show how gutting consumer protections has (a) lowered the number of personal injury lawsuits, (b) not created any jobs, and (c) show how the Chamber of Commerce is full of it.

Posted at 2:14 PM, Jan 15, 2011 in News | Permalink

Justinian Lane

Wisconsin May Cap Punitive Damages At $200,000

Continuing the “2011 will be a bad year for civil justice” theme:

The Senate judiciary committee voted 3-2 on Friday to cap punitive damages at $200,000 or twice the amount of compensatory damages, whichever is greater. Current state law does not lay out any caps on punitive damages.

Source: Wis. GOP caps punitive damages in tort reform bill - WBAY-TV Green Bay-Fox Cities-Northeast Wisconsin News

Capping punitive damages at $200k will only encourage corporations to sell profitable but defective products.  If it weren’t for punitive damage awards well in excess of $200k, Johns Manville might still be pumping out asbestos products.

I don’t understand Republican ideology.  On one hand, most of them support the death penalty.  But on the other hand, they don’t like punitive damages.  How can you rationalize putting a man to death for committing a crime, but not allowing the family of his victims to take more than $200k?

Posted at 2:29 PM, Jan 14, 2011 in News | Permalink

Justinian Lane

Florida Wants To Allow Irrelevant Evidence In Automotive Defect Lawsuits

Here’s a hypothetical for you.  Imagine that a guy is incredibly drunk – say twice the legal limit.  He gets in his car to start it up, and as soon as he turns the key, a defectively-designed fuel pump ignites the gas tank.  The car blows up, and kills him instantly.  The exact same result would have happened to a sober person.  Should the jury hear evidence that the guy was drunk?  No.  The reason why is that the driver’s intoxication has no bearing upon whether or not the fuel pump was defectively-designed.

At the behest of the auto industry, Florida is trying to pass a bill that will allow irrelevant evidence in automotive defect lawsuits:

The bill specifically boosts protections for automakers by allowing them to present more evidence when they are sued for product defects that result in enhanced injury following a crash. Florida is among a handful of states that consider a crash — and any fault of the driver in that crash — unrelated and irrelevant to injuries caused by defective parts or design.

In 2001, the Florida Supreme Court ruled against Ford, saying manufacturers could be held solely liable for design defects that enhanced the injury suffered in a crash, regardless of who was at fault in the crash itself.

The court’s rationale for excluding evidence of the driver’s fault in causing an accident is that the accident-causing fault is not relevant to whether an automobile manufacturer designed a defective product.

Source: Year’s First Major Tort Bill Sails in Senate Judiciary | Sunshine State News

“Enhanced injury cases” are those in which a defectively designed part did not cause the crash, but increased the injuries sustained in the crash.  And whether the driver was drunk, speeding, or otherwise driving irresponsibly shouldn’t be admissible in determining whether the part was defectively designed.

My prediction: This bill will easily pass, and will be described as bringing “fairness” and “common sense” back to the Florida tort system.  It’s only January, but I’m confident this will be the worst year for the civil justice system since the bloodbath that was 1986-1987.

Posted at 10:28 AM, Jan 13, 2011 in Product Liability | Permalink

Justinian Lane

2011 Looking Like A Bad Year For Civil Justice

2011 is already shaping up to be a horrible year for the civil justice system.  The Republican takeover of many state legislatures means we’re going to see a slew of tort “reform” measures that limit the rights of injured citizens and pass on the cost of negligent corporations onto taxpayers.  This, from Wisconsin:

The far-reaching lawsuit reform proposal would make it more difficult for those bringing lawsuits to prove they were injured by a company’s product and to collect damages. Walker said it would protect retailers from liability for defects caused by manufacturers and distributers.

It would also limit liability to products manufactured and sold within 25 years of an injury and make it easier for someone to be sanctioned for bringing a frivolous lawsuit.

* * * *

The Wisconsin Defense Counsel, which represents 450 defense attorneys, said passing the reforms would send a signal to the rest of the country that Wisconsin is serious about attracting new businesses and adding jobs. The Wisconsin Economic Development Association, which works to promote businesses in the state, also praised Walker’s proposal.

Source: Walker’s civil lawsuit reforms draw split reaction - Bloomberg

There are other proposals in other states.  And of course, the House of Representatives wants to repeal the healthcare act and replace it with laws that don’t let people sue negligent doctors.  Because for some reason, it’s important to keep inept doctors practicing medicine. 

The Tea Party movement could be a wild card.  Recall that Sarah Palin said she did not agree with the Supreme Court’s decision to limit punitive damages in the Exxon Valdez case.  And the wording of the 7th Amendment is pretty clear in its declaration that injured citizens have a right to a jury trial.  So maybe the Tea Partiers won’t support laws that curtail our right to sue.  But I doubt it.

Let’s hope I’m wrong.

Posted at 2:46 PM, Jan 10, 2011 in News | Permalink

Justinian Lane

How many lives has “defensive medicine” saved?

“Defensive medicine” is the name given to tests that doctors run more out of fear of being sued than out of concern for their patients.  The poster-child of the “defensive medicine” argument is the CT scan.  We’re told by “reformers” that these tests are expensive and unnecessary.  (The “reform” crowd doesn’t tell us that many doctors have a financial interest in the facilities that own CT scan machines, meaning the more tests the doctors order, the more money they make.  But that’s for another day.)  Here’s some interesting food for thought about whether the tests are truly unnecessary:

WASHINGTON — Annual CT scans of current and former heavy smokers reduced their risk of death from lung cancer by 20 percent, a huge government-financed study has found. Even more surprising, the scans seem to reduce the risks of death from other causes as well, suggesting that the scans could be catching other illnesses.

The findings represent an enormous advance in cancer detection that could potentially save thousands of lives annually, although at considerable expense. Lung cancer will claim about 157,000 lives this year, more than the deaths from colorectal, breast, pancreatic and prostate cancers combined. Most patients discover their disease too late for treatment, and 85 percent die from it.

* * * *

The study found that for every 300 people who were screened, one person lived who would otherwise have died during the study. But one-quarter of those given CT scans were found to have anomalies, nearly all of which were benign. These false signals generally led to more worry, more CT scans and sometimes to lung biopsies and thoracic surgery.

Source: Lung Cancer Deaths Reduced by CT Scans, Study Finds - NYTimes.com

If 1 out of 300 lives were saved in this study, it’s reasonable to assume that at least some lives are saved when “unnecessary” CT scans are run.  I’m still waiting for a survey or study to determine how many doctors changed their diagnosis based upon a test they felt was unnecessary but ordered merely to play CYA.

Posted at 12:41 PM, Nov 05, 2010 in Medical Malpractice | Permalink

Justinian Lane

$1.5 million dollars for sharing 24 songs, $250,000 for a lifetime of paralysis?

Nothing better illustrates the profound inequity of capping noneconomic damages than the verdicts against file sharers:

Jammie Thomas-Rasset, the Minnesota woman who has been fighting the recording industry over 24 songs she illegally downloaded and shared online four years ago, has lost another round in court.

A jury in Minneapolis decided today that she was liable for $1.5 million in copyright infringement damages to Capitol Records, or $62,500 for each song she illegally shared in April 2006.

Source: Jammie Thomas hit with $1.5 million verdict | Digital Media - CNET News

You tell me why a record label (who can’t prove actual damages) should be awarded seven figures, but a person put in a wheelchair for life should only receive $250k. 

Posted at 10:02 AM, Nov 04, 2010 in Damage Caps | Permalink