Republicans call it tort
reform – just as they call their air pollution enabling act a “
Clear Skies Act”. But like so many of their policies, the main purpose of “tort reform” is to decrease the accountability of powerful corporations for the harm that their actions may cause to the American people – which is done by severely limiting the right of the people to seek redress in the courts for such harm.
Though I have considered myself a liberal Democrat all of my adult life, I had long been persuaded of the Republican point of view on this issue, until I read Ralph Nader’s “
No Contest: Corporate Lawyers and the Perversion of Justice in America”. Like so many other Americans, I had an intense dislike for trial lawyers in the abstract (though I liked most of the ones I knew personally) and my favorite jokes were lawyer jokes. And like so many other Americans, I was disgusted at what I perceived as an overly litiginous society characterized by a multitude of trivial lawsuits, which I believed led to skyrocketing costs that hurt us all.
So strongly did I feel about this that when I suffered a severe eye injury caused by shampoo (which has since resulted in repeated episodes of severe eye pain, requiring 50-100 doctor visits over the next 18 years) I refused to sue for damages even though my ophthalmologist was outraged enough to call in a complaint to the manufacturer and encourage me to sue for a large sum of money. Instead, I reasoned that the accident was largely my fault, and I quickly settled for the manufacturer’s offer to reimburse me for a single emergency room visit in return for signing away my rights to any future litigation.
Perhaps the best publicized and most famous tort case in American history is the one in which a woman
sued McDonald’s after spilling hot coffee on herself. That case still serves today, 15 years later, as the “poster boy” for tort reform in the United States. And like so many other Americans, I found it incredible and outrageous – before I understood the facts of the case – that anyone could successfully sue for a huge sum of money for spilling coffee on herself. That and other stories like it are used as powerful weapons to persuade American citizens to support the type of “tort reform” that Republicans have tried, with much success, to impose on our country.
I don’t know how many Americans today are familiar with the facts of that case, as opposed to the corporate/Republican propaganda version. But I have talked with few or no people who are familiar with it, and recently I received an e-mail from a friend of mine that caused me to feel that corporate America continues to be more successful in propagandizing that case than I imagined. My friend is a long time liberal Democrat who despises George W. Bush, and yet her e-mail passed on a statement that ridiculed the hot coffee lady victim, her case, and the legal system that allows such cases to be pursued successfully.
The McDonald’s spilled coffee tort caseOn February 27, 1992, 79 year old Stella Liebeck pulled the lid off a cup of hot coffee she had just purchased from McDonalds, following which some of the coffee spilled onto her lap, causing third degree burns of her genitals, inner thigh and buttocks. She spent 8 days in the hospital undergoing painful skin grafting and debridement of her wounds, following which she had to return to the hospital for additional skin grafting and was immobilized for several months.
Two years after the accident Liebeck wrote a letter to McDonald’s, without financial demands, asking them to please lower the temperature of their coffee. McDonald’s wrote back offering her $800, which angered her and thus motivated her to hire a lawyer. Her lawyer filed suit for $100,000 in compensatory damages plus $300,000 in punitive damages, and the case went to court.
In court, the following salient evidence came out: 1) McDonald’s sold its coffee at 185 degrees F, despite an industry standard of 120-130 degrees; 2) McDonald’s was aware that a burn hazard exists at 140 degrees and that the temperatures at which they pour their coffee into styrofoam cups will burn the mouth and throat; 3) Over a ten year period, more than 700 instances of burns from scalding coffee, including burns of infants and children, had been reported to McDonald’s; 4) During the same period of time, McDonald’s had settled several law suits, most of them out of court; 5) Yet they continued to serve coffee at dangerous temperatures because most of their customers like it like that, since they don’t open the cup or drink the coffee until they get to work, by which time it has had time to cool. Thus, it is a cost-benefit issue for McDonald’s.
The jury awarded Liebeck $200,000 in compensatory damages (double what her lawyer asked for), but reduced it to $160,000 because they held her to be 20% responsible for her accident. They also awarded her $2.7 million in punitive damages, which the judge reduced to $480,000. Both sides appealed the verdict, and later they settled out of court for an amount which McDonald’s required (as part of the deal) be undisclosed to the public.
Are lawsuits in the United States “out of control”?The momentum for “tort reform” in the United States is fueled by the oft repeated talking point, that “Everybody knows lawsuits are out of control”, as
Tucker Carlson has said. More specifically, the belief is carefully cultivated by corporate America that “out of control” lawsuits are causing good businesses to go under and doing great harm the average citizen by causing prices to rise beyond reasonable expectations.
How can we judge such things? Is it really true that a small number of greedy, litiginous citizens are hurting the rest of us and damaging the American economy through a barrage of trivial law suits? Or, are most large law suits against corporations a reasonable and fair response to corporate malfeasance?
That is unquestionably a very difficult question to answer, since a thorough answer would require access to statistics that somehow separated “reasonable” from “frivolous” lawsuits, along with the amount of damages awarded in each case – and the amount of damages are frequently required by the alleged corporate offender to be undisclosed to the public, as part of the settlement deal.
But short of obtaining a full understanding of the situation, there are some clues that we can look to – in addition to the fact that the corporate “poster boy” case, i.e. the McDonald’s case I discussed above, is based on carefully cultivated misinformation.
Are lawsuits hurting good businesses? Ralph Nader
describes the typical whining by powerful corporations about lawsuits:
The same profitable companies that have told Congress and the media that the product liability "explosion" is driving their business out of business have reported something quite different to investors and the Securities and Exchange Commission. Time after time, the same companies report in their SEC filings that liability exposure poses no material threat to their bottom line.
Nader provides several examples in his article to back up his claims. To me, the point is starkly made by the insurance company CEO who made $250,000 per week (that’s his own private salary) while his lobbyists were pushing legislators for a cap on lawsuits of that same amount, for a lifetime of pain and suffering by victims of medical malpractice. Somehow I just don’t see the great societal need for such a limitation on the right of citizens to seek damages through our court system against wealthy corporations such as that.
One of the biggest targets for “tort reform” is medical malpractice. The claim is frequently made that medical malpractice claims are the major cause of rising health care costs in our country. Yet,
a study showed that in states that had limited jury awards for malpractice, doctors’ insurance premiums rose 48% more than in states that hadn’t done that. And it is
well documented that both medical malpractice payouts and premiums account for less than 1% of health care costs in the U.S. And in any event, if the medical profession adequately policed its own, malpractice premiums and payouts would be considerably less than they are.
Some common sense considerationsWhen individual citizens bring lawsuits against powerful corporations it is like David going up against Goliath. The amount of money that these corporations have at their disposal to hire legal counsels is truly awesome. As a medical officer in the Food and Drug Administration (FDA), it seems that almost every time I attend a meeting with a medical device manufacturer to discuss public health issues involving their product, they bring a team of lawyers with them. With that kind of legal representation, compared to the legal representation available to most ordinary American citizens, what sense does it make to believe that monetary awards against corporations are frequently excessive?
And for the occasional jury that does award an excessive amount of money to a plaintiff, our court system is filled with conservative judges who often come to the rescue of the corporations. Why do we need legislation to put a cap on awards to the victims of corporate malfeasance?
The Reagan administration, and now the George W. Bush administration, has deregulated industry after industry in their attempts to free corporations from accountability for the damages that they may cause to people. In such an environment, redress through the courts is the only remaining tool that we have to make corporations accountable for the harm that they cause people in their quest for ever more profits. What reasonable excuse is there for severely and arbitrarily limiting such redress? Isn’t suing for damages a vital part of the rule of law that is needed to hold the powerful accountable for the harm that they do to the weak? Isn’t that a vital part of any capitalist system? If awards for damages are capped at levels that mean little to wealthy corporations, then what mechanisms are left to keep them from hurting us?
Recent “tort reform” bills pushed by RepublicansIn 2006 our Republican Congress and the Bush administration pushed a
bill called “A bill to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system”. It seems that the only time that Republicans are in favor of improving access to health care is when they claim to accomplish that goal simply by putting caps on malpractice claims. Fortunately, Senate Democrats filibustered that bill to death.
We weren’t so lucky with the “
Class Action Fairness Act”, which our Republican Congress pushed through in 2005, and which George W. Bush then signed into law. With the tremendous power imbalance that exists between wealthy corporations and individual citizens, one of the few ways that people have of fighting back against corporations is to combine together to file class action suits. The Class Action Fairness Act severely curtails that possibility by requiring that class action suits be filed in federal rather than in state courts. Virtually all experts who analyzed this bill agree that it will prevent most class action suits from ever seeing the light of day – which indeed was the purpose of the bill.
A final word on “tort reform” and John Edwards’ presidential candidacyWhy finish this post with some words about John Edwards? Well,
the Valerie Lakey case is perhaps the defining case of John Edwards’ career as a trial lawyer and at the same time a rallying cry for tort reformers because of the record setting $25 million that the pool drain company settled for.
Valerie Lakey was a five year old girl who got stuck in a swimming pool because of a pool drain which suctioned up 80% of her small intestine, thus requiring her to receive food through a tube for the rest of her life. Without going into the details of the case, suffice it to say that it was the pool drain’s negligence which was largely responsible for the accident. The $25 million didn’t even include punitive damages, which the family forsook because they desperately needed the money to pay for medical expenses, and pursuing punitive damages would have greatly prolonged the case with appeals.
We all know that if John Edwards wins the Democratic presidential nomination he will be mercilessly pilloried by his Republican opponents as a “predatory trial lawyer”. Here is a description of how Edwards intends to handle that:
His background also will provide his opponents with a juicy target. Personal injury lawyers are only slightly more popular than newspaper reporters.
Edwards says that he doesn't think standing up for average people is a political liability, and that he will be ready for any such attacks. "I absolutely believe that what I've been doing for the last 22 years is perfect preparation for going to Washington and advocating for the people,'' he said..."I'm proud of what I have done,'' Edwards said. "I am more than happy to have Valerie Lakey and Joe Blaney, whose wife was killed by a drunk driver a year ago - any of these folks - stand up and speak on my behalf, which I know they will. Whatever issue they raise about that, I intend to take it head-on.
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