Punitive Damages And Tort Reform

[MikeMangum]

Since when was this topic limited to proposed tort reforms?

I'm proposing tort reform where scientists determine scientific facts, not juries or judges. Make the plaintiff prove the scientific claim by accepted scientific means before the lawsuit can proceed.

Who besides John Edwards loves a system where scientific fact is determined by how sympathetic the victim is?

In real actual cases we have jurys finding that cerebral palsy is caused by doctor errors at birth and silicon breast implants cause connective tissue diseases.

There are major problems with the whole "expert witness" regime: 1) a lawyer can "expert witness" shop, 2) the lawyer pays for the "expert witness", and 3) the "expert witness" is often declared an authority by the court itself.

If something is non-controversial scientifically, any random expert with the appropriate credentials (subpoened at the order of the court) should provide essentially the same testimony as any other, even if that testimony is essentially "science cannot answer the question you are asking with any degree of confidence". Lawyers would be much less willing to play the "expert witness" game unless there really was a strong scientific basis for the claims and the science was clearly on their side.

 

[leftysergeant]

Basic synopsis: women's daughter is killed in car accident because man is talking on his cell phone, woman sues cell phone manufacturer and service provider for damages.

If the carriers or manufacturers contributed any money at all to lobbying efforts to stop hands-free regulations, they contributed to the problem, thus have bought the liability. Screw 'em.

 

[Meadmaker]

, but the thing that drives the entire system is juries.

I expect that if you showed this thread to a random sample of Americans, the vast majority would agree with Meadmaker that it's tragic that the Boy Scouts can't hold potlucks in church basements,...The problem is that when you get those same average Americans on a jury, and they see the hospital bills and hear little Billy testify about his food poisoning, ...suddenly that same average American thinks that it's quite fair and reasonable to make the scouts and the hall (or, more likely, their insurance companies) pay for at least some of what little Billy and his parents have had to bear.

Aye, there's the rub.

If I could write the laws myself, I would take some of those options away from the jury, but I can't.

 

[MikeMangum]

Did you even read what you cited? The Dow-Corning implant suits were settled. There was no judgment of damages. A cap on punitive damages would not have come into play in this situation.

Is it your contention that the size of potential damages awarded to a plaintiff have no impact on the size of a settlement?

 

[MikeMangum]

If the carriers or manufacturers contributed any money at all to lobbying efforts to stop hands-free regulations, they contributed to the problem, thus have bought the liability. Screw 'em.

I see. Petitioning your government is legally actionable based on the content of your petition. Got it.

I still don't understand why people call you a Stalinist, Lefty. I think you're just misunderstood.

 

[leftysergeant]

If a company stands to make more money settling cases than in correcting a known defect, or ceasing to make a deffective product, what is their incentive to act like lawful enterprises?

 

[leftysergeant]

I see. Petitioning your government is legally actionable based on the content of your petition. Got it.

Using your money and power to mislead the public is not the same as "petitioning government."

In a lot of cases, campaign money takes on the smell of bribery.

 

[MikeMangum]

If a company stands to make more money settling cases than in correcting a known defect, or ceasing to make a deffective product, what is their incentive to act like lawful enterprises?

The other 99.999% of voters voting for politicians who will change the regulatory environment for that given industry? Regulations that might set industry wide standards that if aren't met result in regulatory penalties without requiring a consumer to bring a civil suit?

Of course, that can go overboard as well, but no consumer had to directly pay the legal costs for the FDA deciding that Cheerios is making the claims of drug when the box says it is "clinically proven to help lower cholesterol" and giving the company a warning to either remove that language or submit Cheerios as a drug. Failing to do either of those as the FDA requires can result in the FDA forcing General Mills to take Cheerios off of the market.

There are mechanisms to deal with the situations you are referring to.

 

[leftysergeant]

Failing to do either of those as the FDA requires can result in the FDA forcing General Mills to take Cheerios off of the market.

Not complying would be GM's stupidity, not FDA's. Play by the rules or go home. Somebody who can follow the rules will be sure to buy up the patent and trademark and re-work the pacjkage.

There are mechanisms to deal with the situations you are referring to.

Yeah. It's called "punitive damages."

 

[KingMerv00]

This is what I consider a frivolous lawsuit. Basic synopsis: women's daughter is killed in car accident because man is talking on his cell phone, woman sues cell phone manufacturer and service provider for damages.

The link requires signing up and I'm not gonna do that.

A lot of claims like this are the result of a misinterpretation. If it isn't, it is just one more crazy person who will have their case dismissed. Big deal.

 

[MikeMangum]

The link requires signing up and I'm not gonna do that.

A lot of claims like this are the result of a misinterpretation. If it isn't, it is just one more crazy person who will have their case dismissed. Big deal.

If you can look at the basic facts of the case and immediately conclude that the case will be dismissed, doesn't that tell us that any officer of the court should know that as well?

The "big deal" is that the entities being sued for completely frivolous reasons still have to pay legal expenses. For you that may very well be a feature and not a bug, but for the rest of society that is assuredly not the case.

 

[KingMerv00]

If you can look at the basic facts of the case and immediately conclude that the case will be dismissed, doesn't that tell us that any officer of the court should know that as well?

Yep, and it will probably be dismissed, barring some unusual facts.

The "big deal" is that the entities being sued for completely frivolous reasons still have to pay legal expenses. For you that may very well be a feature and not a bug, but for the rest of society that is assuredly not the case.

What you don't understand is that the cellphone manufacturer and service provider may actually MAKE money on the deal.

Rule 11 of federal civil procedure (and the equivalent state statutes) allows the judge to sanction the bringer of a frivolous lawsuit at his/her discretion. The sanctions could include or even exceed lawyer fees. Not only that, the defendants could file a countersuit for malicious prosecution or abuse of process.

 

[NoZed Avenger]

What you don't understand is that the cellphone manufacturer and service provider may actually MAKE money on the deal.

Rule 11 of federal civil procedure (and the equivalent state statutes) allows the judge to sanction the bringer of a frivolous lawsuit at his/her discretion. The sanctions could include or even exceed lawyer fees. Not only that, the defendants could file a countersuit for malicious prosecution or abuse of process.

And even if they jump through the hoops to try and establish that, the chances of them ever recovering even ten cents on a dollar lost is a thousand to one. And I am being overly-generous with both numbers.

(I am not speaking on the other points or the larger question, but this particular point in a non-starter. Most plaintiffs in this type of situation simply do not have assets that can be seized, at least in the western states. I doubt there is enough difference even in the most creditor-friendly jurisdiction to make it worthwhile)

 

[KingMerv00]

And even if they jump through the hoops to try and establish that, the chances of them ever recovering even ten cents on a dollar lost is a thousand to one. and I am being overly-generous with both numbers.

I object to your 10% figure. I am not sure how many billable hours it takes to prepare for a stupid case like this (perhaps Dunstan can tell us) but it seems unlikely that an average person's assets would only cover 10% of that.

Let's say you are right for the moment. Suppose the plaintiff doesn't have the income to pay for any of the defendant's legal fees. What do you recommend as a reasonable alternative? A dismissal of the case and a dismissal of appeal all without procedure?

 

[WildCat]

I object to your 10% figure. I am not sure how many billable hours it takes to prepare for a stupid case like this (perhaps Dunstan can tell us) but it seems unlikely that an average person's assets would only cover 10% of that.

Let's say you are right for the moment. Suppose the plaintiff doesn't have the income to pay for any of the defendant's legal fees. What do you recommend as a reasonable alternative? A dismissal of the case and a dismissal of appeal all without procedure?

I'm pretty sure that NA is an attorney, so I wouldn't be so dismissive of his opinion if I were you.

The problem with the situation as it is is that those with little money or assets can sue those with money and assets at virtually no risk to themselves, no matter how frivolous the claim. The goal is not to win the lawsuit, but to drag out the proceedings so the legal bills pile up for the defendant until it becomes less expensive to just settle.

Our system is designed to encourage frivolous lawsuits. Not really surprising, since most lawmakers are attorneys and attorneys are the only real winners in the current setup.

 

[NoZed Avenger]

I object to your 10% figure. I am not sure how many billable hours it takes to prepare for a stupid case like this (perhaps Dunstan can tell us) but it seems unlikely that an average person's assets would only cover 10% of that.

Let's say you are right for the moment. Suppose the plaintiff doesn't have the income to pay for any of the defendant's legal fees. What do you recommend as a reasonable alternative? A dismissal of the case and a dismissal of appeal all without procedure?

As I said, I am not speaking to the larger issue because I am not sure there is a better way of handling it. I am not arguing for a change in the system; I am simply saying the recovery of attorney's fees and expenses as sanctions does not typically have much to do with the pros and cons.

The standard for showing a claim to be completely frivolous is not trivial, to begin with. Many "novel" theories of receovery were once thought inapplicable, but are now accepted. Courts are loathe to hold pleadings as completely without merit if there is any way to justify the plaintiff is making an argument for a good-faith extension of the laws. It is not trivial to obtain an award of fees in the first place. Even there, you have the expense of answering the suit, answering initial discovery (or drafting and arguing motions for protective orders), communications with the plaintiff and court, and the possibility no dismissal will be granted until after written discovery or even a deposition or two has been allowed.

-- And note (anecdote alert), I was personally denied a summary judgment in a premises liability suit where we showed the client did not own the place where the incident occurred, and in spite of the fact the opponent filed *no response* to our motion and had *no evidence* to show we were the owner.

And my experiences may be slightly atypical because my home state was founded by a bunch of guys on the run from creditors, so the law here (as with most states west of the Mississippi) favors the debtor in this type of situation. In Massachusetts (home of the lenders, and not borrowers in US's early history), you can force the sale of a home and the plaintiff merely gets to keep a portion of the sales price. Here, you essentially cannot touch a home (of any size), a car, tools of trade, a large amount of personal items, an amount of jewelry, furniture, books, etc. etc. etc. You also cannot go after wages. The vast majority of people are simply never going to pay back the tiniest portion of fees.

 

[KingMerv00]

I'm pretty sure that NA is an attorney, so I wouldn't be so dismissive of his opinion if I were you.

I wasn't dismissive. In fact I declared my own ignorance in the matter. I would gladly accept his professional opinion too.

*snipped stuff that wasn't stats*

 

[KingMerv00]

As I said, I am not speaking to the larger issue because I am not sure there is a better way of handling it. I am not arguing for a change in the system;

Fair enough.

I am simply saying the recovery of attorney's fees and expenses as sanctions does not typically have much to do with the pros and cons.

The standard for showing a claim to be completely frivolous is not trivial, to begin with. Many "novel" theories of receovery were once thought inapplicable, but are now accepted. Courts are loathe to hold pleadings as completely without merit if there is any way to justify the plaintiff is making an argument for a good-faith extension of the laws. It is not trivial to obtain an award of fees in the first place. Even there, you have the expense of answering the suit, answering initial discovery (or drafting and arguing motions for protective orders), communications with the plaintiff and court, and the possibility no dismissal will be granted until after written discovery or even a deposition or two has been allowed.

-- And note (anecdote alert), I was personally denied a summary judgment in a premises liability suit where we showed the client did not own the place where the incident occurred, and in spite of the fact the opponent filed *no response* to our motion and had *no evidence* to show we were the owner.

And my experiences may be slightly atypical because my home state was founded by a bunch of guys on the run from creditors, so the law here (as with most states west of the Mississippi) favors the debtor in this type of situation. In Massachusetts (home of the lenders, and not borrowers in US's early history), you can force the sale of a home and the plaintiff merely gets to keep a portion of the sales price. Here, you essentially cannot touch a home (of any size), a car, tools of trade, a large amount of personal items, an amount of jewelry, furniture, books, etc. etc. etc. You also cannot go after wages. The vast majority of people are simply never going to pay back the tiniest portion of fees.

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.

 

[Meadmaker]

Yep, and it will probably be dismissed, barring some unusual facts.

I suspect you are right, but I have to wonder about it. Clearly, the use of cell phones in cars is a forseeable consequence of providing cell phones. The people who make cell phones and provide cell phone service profit heavily from their use. Should they not have to compensate people for the consequences of misuse?

At least, that seems to be the prevailing theory. I don't agree that it ought to be that way, but I'm hard pressed to see the defense against it, unless there is some specific statutory rule they can fall back on. (i.e. a law that specifically absolves them of responsibilty for misuse.)

 

[KingMerv00]

I suspect you are right, but I have to wonder about it. Clearly, the use of cell phones in cars is a forseeable consequence of providing cell phones. The people who make cell phones and provide cell phone service profit heavily from their use. Should they not have to compensate people for the consequences of misuse?

At least, that seems to be the prevailing theory. I don't agree that it ought to be that way, but I'm hard pressed to see the defense against it, unless there is some specific statutory rule they can fall back on. (i.e. a law that specifically absolves them of responsibilty for misuse.)

Bolding mine.

That's just it. Product liability does not apply to the manufacturer when misuse of the product causes the injury. Even if the consumer is a total moron, there are warnings all over the instruction manual: "Do not use while driving."

If the accident happened in a state that bans cell use while driving, the court could easily say it would be against public policy to reward people for breaking the law.