Punitive Damages And Tort Reform

[JoeTheJuggler]

People have a right to influence the legislature in any legal way they like, even if they work for an evil corporation.

I think the point is that since they have tried (with some success) to influence the legislature this way (against restrictions on talking while driving) argues against the idea that they never intended for their products/services to be used this way, and therefore that they can't be held responsible for what happens when people do so.

I don't think he was questioning their right to lobby legislators.

 

[JoeTheJuggler]

There are some theoretical justifications for "punitive" damages beyond the simple punitive aspect. Some torts may be hard to detect or prove. Suppose a defendant anticipates that a particular act will cause $X of harm, but there is only a 1 in 3 chance that the injured party(ies) will actually sue and prevail. Then the defendant's expected liability is only $X/3, and it doesn't fully internalize the costs of the act or omission. Punitives (or treble damages under statutes like antitrust law) basically "make up" for all the times that a defendant "gets away" without liability. That's one theory, anyway.

Well explained! That's what I was trying to get when I said we don't want a defendant to be able to continue to do something (or not do something if it's negligence) that might cause harm simply because they can afford to pay the compensatory damages.

In my first post in this thread, I said I was in favor of tort reform. In particular, I'd like to the laws rewritten so that frivolous lawsuits are more easily dismissed and that the lawyers responsible are punished. You may not be able to collect sanctions from the plaintiff as often as you'd like, but if you can make it painful for plaintiff's lawyers to call these kinds of suits, fewer will make it to court. The system will never be perfect and you will always have crazy people trying to play games, but it is a start.

I agree.

I'm not sure how exactly you make it easier to dismiss a frivolous case. (If it's really frivolous, dismissal ought be automatic, and I presume it is. Of course whether or not a case is frivolous is a judgment call and we don't want to throw out the baby with the bath water.)

 

[leftysergeant]

People have a right to influence the legislature in any legal way they like, even if they work for an evil corporation.

They have, none the less, supported the right of a moron to be a moron, and should share his pain.

 

[KingMerv00]

They have, none the less, supported the right of a moron to be a moron, and should share his pain.

I support the rights of morons to be morons as long as they don't put others (and in certain limited cases, themselves) in danger. I'm am not the final holy judge of what is right and wrong. I don't want my personal subjective opinion of "moron" to get in the way of freedom.

 

[KingMerv00]

I'm not sure how exactly you make it easier to dismiss a frivolous case. (If it's really frivolous, dismissal ought be automatic, and I presume it is. Of course whether or not a case is frivolous is a judgment call and we don't want to throw out the baby with the bath water.)

The phrases you use in statutes or common law determine the level of discretion a judge has. You could rewrite some of those phrases.

 

[KingMerv00]

I think the point is that since they have tried (with some success) to influence the legislature this way (against restrictions on talking while driving) argues against the idea that they never intended for their products/services to be used this way, and therefore that they can't be held responsible for what happens when people do so.

No. I think he wants revenge on large companies.

I don't think he was questioning their right to lobby legislators.

If you are going to punish people for lobbying legislators, you are taking away their right to lobby legislators. Maybe not entirely, but enough to bring up constitutional issues.

 

[JoeTheJuggler]

No. I think he wants revenge on large companies.

That may be, but . . . .

If you are going to punish people for lobbying legislators, you are taking away their right to lobby legislators. Maybe not entirely, but enough to bring up constitutional issues.

I'm not punishing anyone for lobbying--and I don't think leftysergeant was (or if either of us would do that, it's unrelated to this point).

I think that lobbying against restrictions on using cell-phones while driving contradicts the defense that everyone already knows it's dangerous.

From the NY Times article:

Russell Jackson, a lawyer who defends companies in product liability cases and is chairman of the Product Liability Committee of the New York City Bar Association, said Ms. Smith, in her lawsuit, faces a challenge in that consumers generally know it is risky to talk on a phone but do it anyway.

In other words, it sounds like they're lobbying on the premise that it's not dangerous, but their defense in court is that everyone knows it's dangerous, so it doesn't matter whether or not they made proper warnings about the danger or even marketed the phones for that use. (This is similar to the tobacco company arguments after the surgeon general warning was required.)

 

[KingMerv00]

That may be, but . . . .




I'm not punishing anyone for lobbying--and I don't think leftysergeant was (or if either of us would do that, it's unrelated to this point).

I think that lobbying against restrictions on using cell-phones while driving contradicts the defense that everyone already knows it's dangerous.

From the NY Times article:


In other words, it sounds like they're lobbying on the premise that it's not dangerous, but their defense in court is that everyone knows it's dangerous, so it doesn't matter whether or not they made proper warnings about the danger or even marketed the phones for that use. (This is similar to the tobacco company arguments after the surgeon general warning was required.)

Lobbying against regulation isn't necessarily the same as saying it isn't dangerous.

 

[leftysergeant]

I support the rights of morons to be morons as long as they don't put others (and in certain limited cases, themselves) in danger. I'm am not the final holy judge of what is right and wrong. I don't want my personal subjective opinion of "moron" to get in the way of freedom.

When you get behind the wheel of an automobile, the definition of "moron" should be a matter of statute law. I have an uncomplimentary name for anyone who thinks that it is possible to drive safely and phone simultaneously.

By resisting regulation, the cell phone manufactuirers and service providers endorse the idiotic use of their products. I have no sympathy for the companies or their investors. If anything, they owe me something for all the times that one of their customers has put me in fear for my very life.

 

[JoeTheJuggler]

Lobbying against regulation isn't necessarily the same as saying it isn't dangerous.

So if they're lobbying for something dangerous, they shouldn't be held liable? (ETA: And at the very least, lobbying against restrictions on cell-phone use while driving argues against their argument that an accident is unforeseeable.)

At any rate, the case is not frivolous, so this case is not evidence that caps on punitive damages would deter frivolous litigation.

 

[Meadmaker]

but their defense in court is that everyone knows it's dangerous, so it doesn't matter whether or not they made proper warnings about the danger or even marketed the phones for that use.

This strikes me as a completely untenable defense. The victim wasn't using their phone.

It seems like they would have to argue that the dead girl knew that there were cell phone users driving on the highway, and she chose to be in a car anyway.


So, here's where I take a different turn, being a generally anti-lawsuit kind of guy. I say that we, as a society, have accepted the risk associated with allowing people to own cell phones. We have started to put limits on their use, by providing tickets to people who drive while using them, and we are considering further restrictions. However, the actions of the cell phone company and the service provider were within the legal limits of what we considered acceptable behavior. We, as a society, know that people will misuse cell phones, but we have generally decided that the benefits of cell phone availability outweigh the danger of their use. Since the cell phone company was acting within both the letter and spirit of the law, they shouldn't be held liable for the consequences.

In general, I favor statutory and regulatory restrictions on dangerous behavior, instead of our ex post facto assignment of blame via the courts after something bad happens.

At least, that's my opinion.

 

[drkitten]

So, here's where I take a different turn, being a generally anti-lawsuit kind of guy. I say that we, as a society, have accepted the risk associated with allowing people to own cell phones. We have started to put limits on their use, by providing tickets to people who drive while using them, and we are considering further restrictions. However, the actions of the cell phone company and the service provider were within the legal limits of what we considered acceptable behavior.

You're confusing several different types of law.

The cell phone company and the service provider were within the legal limits of what we have considered to be criminal behavior, which is to say, that we have not decided to outlaw cell phone manufacture in the same way that we have outlawed marijuana growing or practicing medicine without a license.

That's not the same as saying that what they did was not in violation of civil law, which is where disputes like this are handled. For example, owning and running a newspaper is legal, but libel is still illegal (and a newspaper can be sued for libel and lose while still operating).

If you engage in any behavior that causes harm -- even 100% legal behavior -- you can still be held responsible for the harm you have caused and forced to pay for it. You can even be held responsible for circumstances beyond your control. If I pay for a band to show up at my wedding, and they fail to show, they need to at a minimum return the deposit (the actual damages), even if the reason that they failed to show was a huge pileup on the freeway.

In general, I favor statutory and regulatory restrictions on dangerous behavior, instead of our ex post facto assignment of blame via the courts after something bad happens.

That seems odd. A few moments ago, you were complaining about how halls were restricting your ability to rent them, up front, instead of an ex post factor assignment of blame via the courts. You would prefer a law that prohibited anyone from serving food at any public event without appropriate safety measures?

Better to outlaw Cub Scout potlucks altogether than for troop 666 to be held responsible for getting its own insurance?

 

[KingMerv00]

When you get behind the wheel of an automobile, the definition of "moron" should be a matter of statute law.

I and many states agree with you. There are criminal statutes to prevent that sort of thiing.

By resisting regulation, the cell phone manufactuirers and service providers endorse the idiotic use of their products. I have no sympathy for the companies or their investors. If anything, they owe me something for all the times that one of their customers has put me in fear for my very life.

Resisting regulation is not the same as encouraging you to use a product unsafely. What specific regulations are we talking about? What wording appeared on those bills? What arguments did the cell company use? I can pretty much guarantee they didn't say "Talking on a cell phone while driving is safe. Please ignore the instruction manual."

 

[JoeTheJuggler]

So, here's where I take a different turn, being a generally anti-lawsuit kind of guy. I say that we, as a society, have accepted the risk associated with allowing people to own cell phones. We have started to put limits on their use, by providing tickets to people who drive while using them, and we are considering further restrictions. However, the actions of the cell phone company and the service provider were within the legal limits of what we considered acceptable behavior. We, as a society, know that people will misuse cell phones, but we have generally decided that the benefits of cell phone availability outweigh the danger of their use. Since the cell phone company was acting within both the letter and spirit of the law, they shouldn't be held liable for the consequences.

I probably agree with that (not knowing the specifics that the jury heard). However, I still don't think this is an example of a frivolous case. The fact that there are arguments to be made and reasonable minds have at least something to offer on both sides makes me think it's not impossible for the plaintiff to win a case like this.

I suspect the defense used its "unforeseeable" and "no relationship with the plaintiff" and "everyone already knows it's dangerous" arguments (at least the first and the 3rd here conflict) precisely because they didn't want to talk about legislative efforts to restrict or ban cell-phone use while driving (see below). I suspect they'd rather pay settlements in these cases than deal with that prospect.

In general, I favor statutory and regulatory restrictions on dangerous behavior, instead of our ex post facto assignment of blame via the courts after something bad happens.

At least, that's my opinion.

Would your opinion change if you knew that the company/defendant had also engaged in lobbying the pertinent legislature to defeat statutory and regulatory restrictions on dangerous cell phone use? Or what if they actively marketed their product/service to be used in cars?

<rant>I know of several people who make a point of getting on the phone when they're in the car because they find driving to be boring! At least some of them have told me that they're certain inattention hasn't caused them to do anything dangerous! (I remember once having to dodge someone who ran a red light in broad daylight while talking on a phone. I blew my horn at them, but I could see they were oblivious to what they had done.)</rant>

 

[JoeTheJuggler]

Resisting regulation is not the same as encouraging you to use a product unsafely.

If the regulation is a restriction on something dangerous, then how exactly would you characterize lobbying against it? It is certainly inconsistent with the argument that accidents are unforeseeable and it seems to me to be inconsistent with the argument that everyone already knows it's dangerous so more warnings would go unheeded. (That is, if they really believed that it's a dangerous practice and that warnings don't work, then the consistent position would to support or at least not oppose enforceable ordinances against cell-phone use while driving.)

Again, my point isn't that the industry can't or shouldn't lobby, but that if they do, the defense arguments offered in this case are inconsistent with that activity.

ETA:

What specific regulations are we talking about? What wording appeared on those bills? What arguments did the cell company use? I can pretty much guarantee they didn't say "Talking on a cell phone while driving is safe. Please ignore the instruction manual."

I don't think lobbying or opposing regulations is part of this case. (Only marketing was mentioned in the news article, so I don't really know what might have been brought up in court.) I was under the impression that leftysergeant was talking about the industry in general.

ETA: FWIW, here's a summary of the state laws on this issue: http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html
I think some municipalities have restrictions too, though I'm not sure of that. (I see that 6 states have laws that prohibit municipal ordinances restricting cell phone use, so I assume they're allowed in the other states--at least those that don't already have such laws at the state level.)

And I think they have indeed been arguing against restrictions on cell phone use in cars by trying to say the case that it's dangerous is a weak one. (Again. . reminiscent of the relationship of the tobacco industry to the science wrt the dangers of cigarette smoking--simultaneously deny or minimize the dangers and claim no liability because everyone knows it's very dangerous.)

 

[KingMerv00]

So if they're lobbying for something dangerous, they shouldn't be held liable?

Maybe. But only in the court of public opinion, not the court of law. Boycott the company if you like. People should be allowed to openly debate about what is an acceptable risk and what is not.

(ETA: And at the very least, lobbying against restrictions on cell-phone use while driving argues against their argument that an accident is unforeseeable.)

I doubt they are arguing about foreseeability. If they are, they have terrible lawyers. The proper argument is that the consumer disobeyed the explicit instructions of the manufacturer and killed someone as a result.

A chainsaw manufacturer can foresee that someone might use their product to cut off someone's head. That doesn't mean they are liable.

In the unlikely event the cell phone company opposed regulation by claiming their product was safe to use while driving, it still shouldn't impact their liability. They did everything required of them by instructing their customers about the proper use of their product. If they want to debate over what laws should be in place, that is their right.

At any rate, the case is not frivolous

I disagree. It should be dismissed on a number of grounds.

so this case is not evidence that caps on punitive damages would deter frivolous litigation.

I oppose hard statutory caps. I'm a little more friendly with the idea soft caps.

 

[quadraginta]

@ drkitten:

If a similar case were to be raised against the publishers of street maps, or car radio/CD players, or the publishers of CDs do you see that there be any fundamental differences due to the product alone? In all cases they can be shown to require that someone devote attention to a task which might be better devoted to driving, and in all cases they are products with reasonable if not even intentional expectations of being used in automobiles.

 

[Meadmaker]

However, I still don't think this is an example of a frivolous case.

I fully agree. Under our current theories of liability, the cell phone company created a product which would inevitably lead to deaths like this one. There's no statutory protection for them. I could easily see the plaintiff winning this case.

Would your opinion change if you knew that the company/defendant had also engaged in lobbying the pertinent legislature to defeat statutory and regulatory restrictions on dangerous cell phone use?

I agree with KingMerv that any attempt to punish people, directly or indirectly, for their efforts to petition the government is unconstitutional. I think that such attempts represent a far greater threat than any threat of unsafe driving.

Or what if they actively marketed their product/service to be used in cars?

There's two issues here that it would be easy to confuse. Under our current liability system, it seems to me that such marketing efforts are relevant. If they actively marketed their product in such a way that they knew it would create risk, especially for non-users of their phones, I can't come up with any defense that would absolve them.

However, I don't think our system is ideal. I think that we should decide if it ought to be legal to own phones that can be used while driving. If it is, I can't object to a company providing such phones.

It's like the baked beans in the church basement case. Do we, as a society, want to allow church potlucks? If so, we ought to allow them. If not, we ought to ban them. Perhaps there's a comfortable middle ground where we explicitly, in statutes, demand that potluck goers compensate any resulting sickness with payment of medical bills, or a 10,000 dollar payement to next of kin who die as a result of the Tuna Surprise. If the rules are clear, and you play by the rules, you ought to be off the hook. If the rules are clear, and you violate them, you ought to have to pay the penalty provided for in the rules.

What we have now is a situation where the rules are fuzzy, and we'll decide after the fact what we meant.

 

[WildCat]

However, I don't think our system is ideal. I think that we should decide if it ought to be legal to own phones that can be used while driving. If it is, I can't object to a company providing such phones.

There is no such thing as a phone which can be safely used while driving. The science is clear on that.

 

[drkitten]

If a similar case were to be raised against the publishers of street maps, or car radio/CD players, or the publishers of CDs do you see that there be any fundamental differences due to the product alone?

Actually, yes.

Research has shown that car phones are more dangerous than street maps, CDs, and what-not, or even than simple conversation with passengers; the driver has more control over where her attention is. People seem to be more able (or perhaps just more willing) to disregard music on a CD in an emergency than to disregard the voice of a friend on the phone.

It helps, of course, that CD's come with a rewind capacity that phone conversations don't.

So I submit that cell phones in cars are inherently dangerous to a degree that CDs in cars aren't.