Punitive Damages And Tort Reform

[KingMerv00]

As for the eighth amendment thing, I don't think I have an excuse - just misremembering State Farm and BMW v Gore I guess.

I completely reasonable mistake. My mind went there to at first but then I remembered the 8th amendment only applies to criminal actions, not civil actions.

(At least I think that's right. )

 

[WildCat]

It is entirely possible the the store closed down as a direct result of the lawsuit. You were still wrong about the lawyers fees. The Chungs chose not to get damages from the plaintiff. Not a major mistake but a mistake nonetheless.

How did they "choose" not to collect damages? The guy didn't have the resources to pay.

Hundreds? Where did you get that number from? How do you it isn't "tens" or less? If you are going to debate the size of the problem, bring some evidence.

So you think every frivolous lawsuit makes the WaPo?

Generally, a frivolous suit is a "dog bites man" story. Not news. It takes a really crazy one like this to get noticed.

Stop doing that.

No, I won't. It's quite common. At least it was before the buses had cameras on them, but that's a recent development.

 

[linusrichard]

Hundreds? Where did you get that number from? How do you it isn't "tens" or less? If you are going to debate the size of the problem, bring some evidence.

I agree - if a lawsuit is truly frivolous, it will be more than apparent early in the case, and it can be dismissed before too many legal bills pile up. Obviously that doesn't always happen, but it can.

 

[KingMerv00]

How did they "choose" not to collect damages? The guy didn't have the resources to pay.

They dropped the claim. They didn't have to. It's possible he didn't have the money to pay but that couldn't really be determined unless they went to court over it.

So you think every frivolous lawsuit makes the WaPo?

Generally, a frivolous suit is a "dog bites man" story. Not news. It takes a really crazy one like this to get noticed.

That's not evidence. That's restating your assertion in a sarcastic tone with a rolly eyes emoticon.

No, I won't.

Your loss. Makes you look bad when you appeal to a fallacy.

 

[WildCat]

Are you suggesting that this would have helped with the crazy pants lawsuit? Not that you need to be suggesting that for this to be a good idea; I'm only wondering.

One problem with it is that courts really really like people to settle, and this discourages settlement.

Not in this particular case, but overall. People would be less willing to settle frivolous lawsuits just to make them go away, and this would discourage filing them in the first place.

It won't do much for insane people, like the judge.

Lawyers who bring frivolous suits should be disbarred.

And let's not forget one of the worst sorts of frivolous lawsuit - the SLAPP. There should be severe penalties for filing such a lawsuit, triple penalties and disbarment at least.

 

[linusrichard]

I completely reasonable mistake. My mind went there to at first but then I remembered the 8th amendment only applies to criminal actions, not civil actions.

(At least I think that's right. )

It appears that way. Ginsburg's dissent in State Farm is helpful.

ETA: Sorry, link.

 

[linusrichard]

There should be severe penalties for filing such a lawsuit, triple penalties and disbarment at least.

I don't disagree, but I really think the crazy pants lawsuit is an extreme example, because I really think nothing could have helped that situation. The plaintiff was either crazy or stupid or both - he believed his case had merit in law and fact. The threat of disbarment for a frivolous lawsuit will not deter a man who believes his lawsuit is not frivolous.

 

[KingMerv00]

I don't disagree, but I really think the crazy pants lawsuit is an extreme example, because I really think nothing could have helped that situation. The plaintiff was either crazy or stupid or both - he believed his case had merit in law and fact. The threat of disbarment for a frivolous lawsuit will not deter a man who believes his lawsuit is not frivolous.

FWIW, Pearson did loose his job over the case. Not a disbarment but certainly a whack upside the head.

Anyway, enough chat over anecdotal evidence. How about some statistics? Does anyone know where to find numbers on the state of the tort system in America so we can stop farting around on side topics?

 

[WildCat]

Your loss. Makes you look bad when you appeal to a fallacy.

How's this for a fallacy Merv: Silicon breast implants.

An entire industry put out of business on anecdotal evidence alone, due entirely to frivolous lawsuits.

Or is that a myth?

How many millions of dollars in damages were awarded for diseases caused by silicon breast implants when there is absolutely no scientific evidence at all that silicon is capable of causing said diseases?

I bet most of them were settled out of court too, once the ridiculous damages awarded by brain-dead juries started rolling in.

Which brings us to another tactic of those bringing frivolous lawsuits - jusidiction shopping. File a class-action lawsuit, recruit a plaintiff from a county which has a reputation for compliant judges and knee-jerk jurors who will award huge damages despite the lack of evidence, and file your lawsuit there. For many years Madison County, IL was one such jurisdiction.

 

[psychictv]

I agree with what everyone else already said. The only serious problem with crazypants appears to be the possibility that he was unable to pay the defendant's legal fees (although if they pursued it, I'm sure they could have gotten something out of him in the future).

What is a good solution to that problem? Should damages be limited to an individual's personal assets? That doesn't seem ideal, as the poor should also have the right to sue.

To play the devil's advocate, I'm not entirely convinced that the outcome of this case was unjust. A business lost their customer's pants and refused to pay to replace them. As a result they went out of business. It's a bit of an extreme case but who knows how much poor service they got away with in the past. On the other hand, crazy pants dude was a moron for not accepting the $12,000 settlement they offered!

 

[KingMerv00]

How's this for a fallacy Merv:

I think that's an excellent fallacy. Nice work.

Silicon breast implants.

That wasn't so much a problem with the legal system as the lack of science education in America. The judge is not supposed to determine (except in extreme cases) whether or not the scientific evidence is reliable, that's up to the jury. Sometimes juries suck. That doesn't mean I want to get rid of them.



Still waiting for stats. At least try a little.

Failing that, acknowledge that stats are the best way to discover the scope of the problem.

 

[KingMerv00]

To play the devil's advocate, I'm not entirely convinced that the outcome of this case was unjust. A business lost their customer's pants and refused to pay to replace them. As a result they went out of business. It's a bit of an extreme case but who knows how much poor service they got away with in the past. On the other hand, crazy pants dude was a moron for not accepting the $12,000 settlement they offered!

The court determined that they lost his pants for something like a week and then offered to return them. He refused to believe they were his. The court determined that they were, in fact, his and he was just being a stubborn bastard. The plaintiff probably could (and should) have won something but his behavior crossed the line.

 

[gnome]

I can certainly support lawyers facing ethics charges or (in extreme cases) disbarment for accepting frivolous suits.

 

[Baylor]

Your thoughts please.

Evidence?

 

[Puppycow]

Your thoughts please.

Kill all the lawyers.

 

[leftysergeant]

I have always thought of tort reform as tort deform. Mostly, I hear about it from corporations and their lap dogs and lobbyists looking to shirl responsibility for bad conduct.

Frivilous lawsuits are probably not the huge problem that the right wing claims they are. Crazy Pants is in a class by himself.

Vexatious litigation should be a felony. Disbar fools who won't take no for an answer.

A good deterant against BS like Crazy Pants pulled would be that he be required to post bond pending appeal.

Punitive damages should be awarded in all cases of gross negligence and criminal conduct, and should be based on two factors only, i.e., the degree of harm done to the plaintif and the ability of the defendant to pay.

I have no problem with ruinous punitive damages. It sends a clear message to corporations and conmen and shoddy operators.

"Clean up your act."

And there is no justification for ever sealing any settlement to keep it a secrtet that a product was known to be defective when it caused a problem. If your chairs break when an obese person sits on them, you know that they break, and you do nothing about it, pay up and shut up, and I don't care whether you can continue to do business any more. There are decent people to take your place.

 

[WildCat]

To play the devil's advocate, I'm not entirely convinced that the outcome of this case was unjust. A business lost their customer's pants and refused to pay to replace them.

Actually, the pants were found and the judge refused to accept that fact.

 

[WildCat]

I think that's an excellent fallacy. Nice work.

That wasn't so much a problem with the legal system as the lack of science education in America. The judge is not supposed to determine (except in extreme cases) whether or not the scientific evidence is reliable, that's up to the jury. Sometimes juries suck. That doesn't mean I want to get rid of them.



Still waiting for stats. At least try a little.

Failing that, acknowledge that stats are the best way to discover the scope of the problem.

So it's OK when the courts destroy entire industries without any scientific evidence, have lay people determining scientific "facts", and yet the need for tort reform is a myth?

 

[drkitten]

So it's OK when the courts destroy entire industries without any scientific evidence, have lay people determining scientific "facts", and yet the need for tort reform is a myth?

Well, given that "tort reform" proposals wouldn't address the problem of "lay people determining scientific facts,".... yes, the need for tort reform is a myth.

There are certainly some reforms you could make, although you'd have to do some pretty severe changes to get ride of the the principle that the jury is the ultimate judge of facts. But none of the proposals I've ever seen even address that issue.

I've seen, for example, proposals that prohibit forum shopping.

I've seen proposals that increase sanctions for vexatious or harrassing lawsuits (but, by definition, a lawsuit that you WIN is neither vexatious or harassing, since you demonstrably have a legally actionable grievance).

I've seen proposals that try to shift the burden of paying for a lawsuit to the loser.

I've seen proposals to limit punitive damages.

Et cetera.

None of these would have addressed the issue of a good lawyer managing to bamboozle a jury about scientific matters.

 

[Darth Rotor]

http://www.texmed.org/Template.aspx?id=5238

May it please the court, this source is IMO a bit biased, however, interesting numbers. Anecdotally, my county stopped losing OB's since Prop 12 was passed. They were leaving in carloads, due in part to the barrage of lawsuits. I lost three co workers between 2005 and 2006, they moved out of town. In each case, husban or wife worked for an attorney business dried up when that lawsuit bonanza, in Ortho and OB, in our county slowed down.

This is a zero sum "health care reform" measure, since some other place lost the MD's who came back to our county.
Some points to ponder:

Charity care rendered by Texas hospitals rose 24-percent in the three years following the passage of Prop. 12. But for the 2003 reforms, this $594 million increase in charity care expenses would have left many Texas hospitals with the stark choice of turning away charity care patients or closing their doors altogether. The state’s non-profit hospitals saw their charity care costs increase 36-percent in this same time frame.

HB 4 (the 2003 medical liability reforms) has a track record of improving access to medical care.

The physician growth rate in El Paso is 76-percent greater than pre-reform.
The physician growth rate in San Antonio is 55-percent greater than pre-reform.
The physician growth rate in Houston is 32-percent greater than pre-reform.
After years of decline, the ranks of medical specialists are growing.
(DR comment: I don't actually know how that correlation to Prop 12 is established.)
Seventy-six Texas counties have seen a net gain in emergency physicians (PDF) since the passage of reforms five years ago, including 39 medically underserved counties and 30 counties that are partially medically underserved.

In all, 43 metropolitan counties and 33 rural counties (PDF) have seen a net gain in ER docs.

Twenty-four counties (PDF) that did not have an emergency medicine physician at the passage of Proposition 12 now do.

Texas saw a net loss of 14 obstetricians in the two years preceding reform. Since then the state has experienced a net gain of 192 obstetricians.

Twenty-four rural Texas counties have added at least one obstetrician since the passage of Proposition 12, including twelve counties that previously had none.

Since Prop. 12, 52 counties have seen a net gain in obstetricians, including 23 medically underserved counties and 21 partially medically underserved counties.

Texas experienced a net loss of 9 orthopedic surgeons from 2000 to 2003. Since tort reform, the state has added 220 orthopedic surgeons. This represents a 12.2-percent growth in the number of orthopedists in the past five years.

Forty-six Texas counties have seen a net gain in orthopedists since the passage of reforms including seven—Blanco, Cherokee, DeWitt, Hopkins, Lavaca, Somervell and Starr—that previously had none.

Eleven of the counties that have added an orthopedist are rural and eleven are medically underserved.

Twenty-six counties that have added an orthopedic surgeon are partially medically underserved.

It is likely that tort reform is but one of a number of factors involved. According to the doctors I know, tort reform had a huge impact in this change of environment, i.e., not running doctors off.

DR